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EN BANC in Section 12 of the Judiciary Act of 1948.

A similar rule is found in Section 5 of BP


129 for the Court of Appeals. There is no such arrangement, however, in the case of
[G.R. No. 93867 :  December 18, 1990.]
the Commission on Elections. The designation made by the President of the Philippines
192 SCRA 358 should therefore be sustained for reasons of "administrative expediency," to prevent
disruption of the functions of the COMELEC.
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity
as ACTING CHAIRPERSON of the COMMISSION ON ELECTIONS, Respondent. Expediency is a dubious justification. It may also be an overstatement to suggest that
the operations of the Commission on Elections would have been disturbed or
 
stalemated if the President of the Philippines had not stepped in and designated an
DECISION Acting Chairman. There did not seem to be any such problem. In any event, even
assuming that difficulty, we do not agree that "only the President (could) act to fill the
 
hiatus," as the Solicitor General maintains.
CRUZ, J.:
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional
  Commissions as "independent." Although essentially executive in nature, they are not
under the control of the President of the Philippines in the discharge of their respective
The petitioner is challenging the designation by the President of the Philippines of
functions. Each of these Commissions conducts its own proceedings under the
Associate Commissioner Haydee B. Yorac as Acting Chairman of the Commission on
applicable laws and its own rules and in the exercise of its own discretion. Its
Elections, in place of Chairman Hilario B. Davide, who had been named chairman of
decisions, orders and rulings are subject only to review on Certiorari by this Court as
the fact-finding commission to investigate the December 1989 coup d' etat attempt.
provided by the Constitution in Article IX-A, Section 7.
The qualifications of the respondent are conceded by the petitioner and are not in
The choice of a temporary chairman in the absence of the regular chairman comes
issue in this case. What is the power of the President of the Philippines to make the
under that discretion. That discretion cannot be exercised for it, even with its consent,
challenged designation in view of the status of the Commission on Elections as an
by the President of the Philippines.
independent constitutional body and the specific provision of Article IX-C, Section 1(2)
of the Constitution that "(I)n no case shall any Member (of the Commission on A designation as Acting Chairman is by its very terms essentially temporary and
Elections) be appointed or designated in a temporary or acting capacity." therefore revocable at will. No cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as Acting Chairman of the
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where
Commission on Elections may be withdrawn by the President of the Philippines at any
President Elpidio Quirino designated the Solicitor General as acting member of the
time and for whatever reason she sees fit. It is doubtful if the respondent, having
Commission on Elections and the Court revoked the designation as contrary to the
accepted such designation, will not be estopped from challenging its withdrawal.
Constitution. It is also alleged that the respondent is not even the senior member of
chanrobles virtual law library

the Commission on Elections, being outranked by Associate Commissioner Alfredo E. It is true, as the Solicitor General points out, that the respondent cannot be removed
Abueg, Jr. :-cralaw at will from her permanent position as Associate Commissioner. It is no less true,
however, that she can be replaced as Acting Chairman, with or without cause, and
The petitioner contends that the choice of the Acting Chairman of the Commission on
thus deprived of the powers and perquisites of that temporary position.
Elections is an internal matter that should be resolved by the members themselves
and that the intrusion of the President of the Philippines violates their independence. The lack of a statutory rule covering the situation at bar is no justification for the
He cites the practice in this Court, where the senior Associate Justice serves as Acting President of the Philippines to fill the void by extending the temporary designation in
Chief Justice in the absence of the Chief Justice. No designation from the President of favor of the respondent. This is still a government of laws and not of men. The
the Philippines is necessary. problem allegedly sought to be corrected, if it existed at all, did not call for
presidential action. The situation could have been handled by the members of the
In his Comment, the Solicitor General argues that no such designation is necessary in
Commission on Elections themselves without the participation of the President,
the case of the Supreme Court because the temporary succession cited is provided for
however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections
would most likely have been guided by the seniority rule as they themselves would
have appreciated it. In any event, that choice and the basis thereof were for them and
not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved
only by the best of motives when she issued the challenged designation. But while
conceding her goodwill, we cannot sustain her act because it conflicts with the
Constitution. Hence, even as this Court revoked the designation in the Bautista case,
so too must it annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission
on Elections, foremost among which is the security of tenure of its members. That
guaranty is not available to the respondent as Acting Chairman of the Commission on
Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee
B. Yorac as Acting Chairman of the Commission on Elections is declared
UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as
such. This is without prejudice to the incumbent Associate Commissioners of the
Commission on Elections restoring her to the same position if they so desire, or
choosing another member in her place, pending the appointment of a permanent
Chairman by the President of the Philippines with the consent of the Commission on
Appointments. : rd

SO ORDERED.
G.R. No. 142038               September 18, 2000 so ruled upon by the Second Division, again in favor of private respondent. Lastly, petitioner
claimed that the Second Division erred in totally disregarding his other objections and
ROLANDO E. COLUMBRES, petitioner, therefore urged the COMELEC EN BANC to review the findings of the Second Division.
vs.
COMMISSION ON ELECTIONS and HILARIO DE GUZMAN, JR., respondents. On January 25, 2000, the respondent COMELEC En Banc issued its Resolution denying
petitioner's motion for reconsideration and affirming the ruling of the Second Division.
DECISION
In resolving petitioner's Motion for Reconsideration, the respondent COMELEC En Banc, in
BUENA, J.: the herein assailed Resolution, said:

This petition for certiorari seeks the nullification of the COMELEC En Banc Resolution dated "xxx Protestant-appellee alleges that there were 124 ballots which were written by two (2)
January 25, 2000 which affirmed the Resolution of the Second Division setting aside the persons, and as such they should all be annulled. Instead, the Commission (Second Division)
decision of the Regional Trial Court of Dagupan City, Branch 40 in Election Case No. D- 31-98 annulled only 13 ballots while validating 111 ballots in favor of protestee-appellant Hilario de
annulling the election and proclamation of private respondent Hilario de Guzman, Jr. as Mayor Guzman, Jr. Movant contends that the 13 ballots commonly invalidated by both the COMELEC
of San Jacinto, Pangasinan in the May 11, 1998 elections. (Second Division) and the trial court as having been written by two persons were no different
from the 111 ballots validated by the Commission (Second Division) but invalidated by the trial
Petitioner Rolando Columbres and private respondent Hilario de Guzman, Jr. were candidates court.
for the position of Mayor of San Jacinto, Pangasinan during the May 11, 1998 elections. After
canvassing, the Municipal Board of Canvassers proclaimed private respondent with 4,248 "x x x x x x x x x
votes as against petitioner's 4,104 votes. Subsequently, petitioner filed an election protest with
the Regional Trial Court docketed as Election Case No. D-31-98. Petitioner contested 42 "xxx The finding by the Commission (Second Division) that the 111 questioned ballots were
precincts and prayed for the revision of ballots in the said precincts. written by the same person is a finding of fact that may not be the subject of a motion for
reconsideration. Movant protestant-appellee is not challenging the sufficiency of the evidence
On December 7, 1998, the trial court rendered its decision, declaring petitioner as the duly in this instance but the appreciation thereof by the Commission (Second Division)." 1

elected mayor of San Jacinto, Pangasinan with 4,037 votes against 3,302 votes of private
respondent. "xxx Movant protestant-appellee (also) contends that there were 120 ballots erroneously
validated by the Commission (Second Division) which were admittedly marked. He argues that
Private respondent appealed the decision to the respondent COMELEC. The case was whenever ballots contain markings very obvious and visible on their faces, the presumption is
docketed as COMELEC EAC No. A-20-98 and raffled to the COMELEC Second Division. that the said markings on the ballots were placed thereat by the voter themselves - thus
nullifying the said ballots. Stated otherwise, protestant-appellee argues that the purported
On October 5, 1999, the Second Division promulgated its Resolution reversing and setting markings on the questioned ballots are presumed to have been placed there by the voters
aside the decision rendered by the Regional Trial Court and, instead, affirmed the election and themselves and, unless proven otherwise, nullifies the ballots.
proclamation of private respondent. Private respondent was declared to have won by sixty-
nine (69) votes. "We disagree. The movant is relying on an erroneous and misleading presumption. The rule is
that no ballot should be discarded as marked unless its character as such is unmistakable.
Petitioner filed a motion for reconsideration with respect to the ruling of the COMELEC Second The distinction should always be between marks that were apparently, carelessly, or
Division, validating 120 marked ballots in favor of private respondent, despite absence of innocently made, which do not invalidate the ballot, and marks purposely placed thereon by
evidence, to prove that the marks have been placed on the ballots by third persons other than the voter with a view to possible future identification of the ballot, which invalidate it. (Cacho
the voters themselves. Petitioner likewise moved for a reconsideration of the decision with vs. Abad, 62 Phil. 564). The marks which shall be considered sufficient to invalidate the ballot
respect to the 111 ballots found by the trial court to have been written by two persons, but not are those which the voter himself deliberately placed on his ballot for the purpose of identifying
it thereafter (Valenzuela vs. Carlos, 42 Phil. 428). In other words, a mark placed on the ballot ballots where the Trial Court and the Division disagreed and make its own final findings and
by a person other than the voter himself does not invalidate the ballot as marked. (Tajanlangit determination, in effect disputes the ruling of the Second Division implying that the
vs. Cazenas, 5 SCRA 567)" 2
appreciation is contrary to law. Rule 19, Sec. 1 of the COMELEC Rules of Procedure
enumerates the grounds that may be raised in motions for reconsideration and one of which is
Hence, the present petition. that the decision, order or ruling is contrary to law. Insufficiency of evidence to justify the
decision, order, or ruling is not the only ground for the filing of motions for reconsideration. xxx
Petitioner raises two issues:
"When protestant/appellee argued that the appreciation of the Division is erroneous, there is
1. Whether or not, the findings of fact of the COMELEC Division, especially so in matters of the implication that such finding or ruling is contrary to law and thus, may be a proper subject
appreciation of ballots, is absolute and cannot be the subject of a Motion for Reconsideration of a motion for reconsideration."
before the COMELEC En Banc; and
To determine the winning candidate, the application of election law and jurisprudence in
2. Whether or not, in appreciation of ballots, when a ballot is found to be marked, absent any appreciating the contested ballots, is essential. Any question on the appreciation of the ballots
evidence aliunde, there is the presumption that the markings were placed by a third person, would directly affect the sufficiency of the evidence supporting the declared winner. As the
and therefore, should not invalidate the ballot. Solicitor General submits in his comment on the petition, any question on the sufficiency of the
evidence supporting the assailed decision, order or ruling of a COMELEC Division is also a
proper subject of a motion for reconsideration before the COMELEC en banc.
On the first issue, indeed, the COMELEC erred when it declared that
Moreover, the opposing conclusions of the trial court and the COMELEC Second Division
"xxx it is emphatic that the grounds of motion for reconsideration should consist of insufficiency
should have prompted the COMELEC en banc to undertake an independent appreciation of
of evidence to justify the decision, order or ruling; or that the said decision, order or ruling is
the contested ballots to see for itself which of the conflicting rulings is valid and should be
contrary to law. Nowhere in the provision can finding of fact be the subject of motion for
upheld.
reconsideration. The finding by the Commission (Second Division) that the 111 questioned
ballots were written by the same person is a finding of fact that may not be the subject of a
motion for reconsideration. Movant protestant-appellee is not challenging the sufficiency of the Be that as it may, it is our considered opinion, and we rule, that the COMELEC en banc
evidence in this instance but the appreciation thereof by the Commission (Second Division)." 3 gravely abused its discretion in declaring that the COMELEC Division's findings on the
contested ballots are findings of facts "that may not be the subject of a motion for
reconsideration".
Section 1, Rule 19 of the COMELEC Rules of Procedure reads:
On the second issue, petitioner argues that the findings, both by the trial court as well as the
"Section 1. Grounds of Motion for Reconsideration. - A motion for reconsideration may be filed
COMELEC's Second Division, are similar - that said 120 ballots (Exhs "R," "R-1" and series)
on the grounds that the evidence is insufficient to justify the decision, order or ruling; or that
indeed, had markings but the trial court and the COMELEC Second Division differed in their
the said decision, order or ruling is contrary to law."
conclusion. The trial court nullified the ballots (supposedly in favor of herein private
respondent) for being admittedly marked. On the other hand, the Second Division declared the
Commissioner Dy-Liaco, in her Dissenting Opinion, correctly opined, and we quote: ballots valid because the marks were allegedly placed by third person/s, purposely to
invalidate the ballots. Petitioner alleges that respondent COMELEC en banc gravely abused
"I dissent in part from the majority conclusion that finding of facts on the one hundred eleven its discretion in presuming that the markings found on the ballots have been made by third
(111) questioned ballots cannot be the subject of a motion for reconsideration considering that persons, absent concrete evidence showing that they were placed by the voters themselves.
the movant protestant/appellee 'is not challenging the sufficiency of evidence in this instance
but the appreciation thereof by the Commission (Second Division).' Protestant/Appellee in his Petitioner is correct that there is no such presumption in law. Instead, the legal presumption is
discussion of his motion for reconsideration (p. 205 of the records of the case/ p. 24 of the MR that the sanctity of the ballot has been protected and preserved. Where the ballot, however,
pleading) imploring the Commission En Banc to review, re-examine and re-inspect the 111
shows distinct and marked dissimilarities in the writing of the names of some candidates from
the rest, the ballot is void for having been written by two hands. A ballot appearing to have

been written by two persons is presumed to have been cast "as is" during the voting, and this
presumption can only be overcome by showing that the ballot was tampered with after it was
deposited in the ballot box.5

If the COMELEC Second Division found markings in the contested 111 ballots that were
placed by persons other than the voters themselves, then it should not have validated them.
To rule the way it did, would require a showing that the integrity of ballots has not been
violated. Otherwise, the presumption that they were placed "as is" in the ballot box stands.

In his Comment, the Solicitor General raised the following significant questions: "In the
absence of showing that the ballot boxes were violated and that somebody else had access to
the ballots, how was the COMELEC able to conclude that indeed said marks were placed by
persons other than the voters?" Indeed, the poll body is mum on how third persons were able
to access the questioned ballots. Furthermore, the COMELEC Second Division neither made a
categorical finding as to whether the different markings on the ballots were deliberately placed
so as to sufficiently identify them or not. Yet, the COMELEC en banc simplistically concluded
that there was "nothing left for xxx it but to affirm the VALIDITY of the questioned 120 ballots in
favor of protestee-appellant Hilario de Guzman, Jr."

In view of the foregoing circumstances, it appears that the COMELEC en banc was remiss in
its duties to properly resolve the Motion for Reconsideration before it. It should have given a
close scrutiny of the questioned ballots and determined for itself their validity, i.e., whether
they were marked ballots or not. There is truly a need to actually examine the questioned
ballots in order to ascertain the real nature of the alleged markings thereon. One has to see
the writings to be able to determine whether they were written by different persons, and
whether they were intended to identify the ballot.

WHEREFORE, the case is hereby remanded to the COMELEC en banc for it to physically re-
examine the contested ballots and ascertain their validity. It is further directed to resolve this
case within thirty (30) days from receipt of this decision in view of the proximity of the next
elections.

This decision is immediately executory.

SO ORDERED.
On August 31, 1999, the COMELEC en banc dismissed petitioner's suit. The election tribunal
held that private respondent paid the required filing fee. It also declared that the defect in the
G.R. No. 139853               September 5, 2000 verification is a mere technical defect which should not bar the determination of the merits of
the case. The election tribunal stated that there was no forum shopping to speak of.
FERDINAND THOMAS M. SOLLER, petitioner,
vs. Under the COMELEC Rules of Procedure, a motion for reconsideration of its en banc ruling is
COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF PINAMALAYAN, prohibited except in a case involving an election offense. Since the present controversy

ORIENTAL MINDORO (Branch 42) and ANGEL M. SAULONG, respondents. involves no election offense, reconsideration is not possible and petitioner has no appeal or
any plain, speedy and adequate remedy in the ordinary course of law. Accordingly, petitioner
RESOLUTION properly filed the instant petition for certiorari with this Court.

QUISUMBING, J.: On September 21, 1999, we required the parties to maintain the status quo ante prevailing as
of September 17, 1999, the date of filing of this petition.
This special civil action for certiorari seeks to annul the resolution promulgated on August 31,
1999, in COMELEC special relief case SPR No. 10-99. The resolution dismissed petitioner's Before us, petitioner asserts that the COMELEC committed grave abuse of discretion
petition to set aside the orders of the Regional Trial Court of Pinamalayan, Oriental Mindoro, amounting to lack or excess of jurisdiction:
dated October 1, 1998 and February 1, 1999, which denied petitioner's motion to dismiss the
election protest filed by private respondent against petitioner and the motion for [I]
reconsideration, respectively.
... IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS PRIVATE RESPONDENT'S
Petitioner and private respondent were both candidates for mayor of the municipality of ELECTION PROTEST DESPITE HIS (sic) LACK OF JURISDICTION OVER THE SAME BY
Bansud, Oriental Mindoro in the May 11, 1998 elections. On May 14, 1998, the municipal REASON OF THE FAILURE OF THE PRIVATE RESPONDENT TO PAY ALL THE
board of canvassers proclaimed petitioner Ferdinand Thomas Soller duly elected mayor. REQUISITE FILING FEES.

On May 19, 1998, private respondent Angel Saulong filed with the COMELEC a "petition for [II]
annulment of the proclamation/exclusion of election return". On May 25, 1998, private

respondent filed with the Regional Trial Court of Pinamalayan, Oriental Mindoro, an election ... IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO DISMISS PRIVATE
protest against petitioner docketed as EC-31-98. RESPONDENT'S ELECTION PROTEST DESPITE THE INSUFFICIENCY OF HIS PETITION
IN FORM AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE OF ACTION.
On June 15, 1998, petitioner filed his answer with counter-protest. Petitioner also moved to
dismiss private respondent's protest on the ground of lack of jurisdiction, forum-shopping, and [III]
failure to state cause of action.
2

...IN AFFIRMING RESPONDENT RTC'S REFUSAL TO DISMISS THE ELECTION PROTEST


On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by private respondent. BELOW ON THE GROUNDS OF FORUM-SHOPPING AND FAILURE TO COMPLY WITH
THE SUPREME COURT CIRCULAR REQUIRING A TRUTHFUL CERTIFICATION OF NON-
On October 1, 1998, the trial court denied petitioner's motion to dismiss. Petitioner moved for FORUM SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE THEREOF. 4

reconsideration but said motion was denied. Petitioner then filed with the COMELEC a petition
for certiorari contending that respondent RTC acted without or in excess of jurisdiction or with
grave abuse of discretion in not dismissing private respondent's election protest.
In our view, notwithstanding petitioner's formulation of issues, the principal question presented Since public respondent COMELEC had acted without jurisdiction in this case, the petition
for our resolution is whether or not public respondent COMELEC gravely abused its discretion herein is without doubt meritorious and has to be granted. But in order to write finis to the
amounting to lack or excess of jurisdiction in not ordering the dismissal of private respondent's controversy at bar, we are constrained to also resolve the issues raised by petitioner, seriatim.
election protest.
Petitioner contends that private respondent's protest should have been dismissed outright as
At the outset, even if not squarely raised as an issue, this Court needs to resolve the question the latter failed to pay the amount of P300.00 filing fee required under the COMELEC
concerning COMELEC's jurisdiction. Unless properly resolved, we cannot proceed further in rules. Petitioner's contention is supported by Section 9, Rule 35 of the COMELEC Rules of

this case. Procedure and corresponding receipts itemized as follows:


9  10 

Section 3, Subdivision C of Article IX of the Constitution reads: P368.00 - Filing fee in EC 31-98, O.R. 7023752;

"The Commission on Elections may sit en banc or in two divisions, and shall promulgate its P 32.00 - Filing fee in EC 31-98, O.R. 7022478;
rules of procedure in order to expedite the disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in division, P 46.00 - Summons fee in EC 31-98, O.R. 7023752;
provided that motions for reconsideration of decision shall be decided by the Commission en
banc." P 4.00 - Summons fee in EC 31-98, O.R. 4167602;

Thus, in Sarmiento vs. COMELEC and in subsequent cases, we ruled that the COMELEC,
5  6 
P 10.00 -- Legal Research Fund fee, O.R. 2595144, and;
sitting en banc, does not have the requisite authority to hear and decide election cases
including pre-proclamation controversies in the first instance. This power pertains to the
P 5.00 -- Victim Compensation Fund, O.R. 4167979
divisions of the Commission. Any decision by the Commission en banc as regards election
cases decided by it in the first instance is null and void.
-----------
As can be gleaned from the proceedings aforestated, petitioner's petition with the COMELEC
was not referred to a division of that Commission but was, instead, submitted directly to the P465.00
Commission en banc. The petition for certiorari assails the trial court's order denying the
motion to dismiss private respondent's election protest. The questioned order of the trial court Close scrutiny of the receipts will show that private respondent failed to pay the filing fee of
is interlocutory because it does not end the trial court's task of adjudicating the parties' P300.00 for his protest as prescribed by the COMELEC rules. The amount of P368.00 for
contentions and determining their rights and liabilities as regards each other. In our view, the
7  which OR 7023752 was issued for the Judiciary Development Fund as shown by the entries in
authority to resolve petition for certiorari involving incidental issues of election protest, like the the cash book of the clerk of court. Thus, only P32.00 with OR 7022478 credited to the
11 

questioned order of the trial court, falls within the division of the COMELEC and not on the general fund could be considered as filing fee paid by private respondent for his protest. A
COMELEC en banc. Note that the order denying the motion to dismiss is but an incident of the court acquires jurisdiction over any case only upon the payment of the prescribed docket
election protest. If the principal case, once decided on the merits, is cognizable on appeal by a fee. Patently, the trial court did not acquire jurisdiction over private respondent's election
12 

division of the COMELEC, then, there is no reason why petitions for certiorari relating to protest. Therefore, COMELEC gravely erred in not ordering the dismissal of private
incidents of election protest should not be referred first to a division of the COMELEC for respondent's protest case.
resolution. Clearly, the COMELEC en banc acted without jurisdiction in taking cognizance of
petitioner's petition in the first instance. We have in a string of cases had the occasion to rule on this matter. In Loyola
13 

vs. COMELEC, the clerk of court assessed private respondent therein the incorrect filing fee of
P32.00 at the time of filing of the election protest. Upon filing his counter-protest, petitioner
was assessed to pay the same amount. Subsequently, the trial court remedied the situation by
directing the parties to pay the balance of P268.00. On review, we held that the lapse was not preparation and appreciation of election returns and the proceedings of the municipal board of
at all attributable to private respondent and there was substantial compliance with the filing fee canvassers. But note that such petition was filed after the proclamation of petitioner as the
requirement. The error lies in the Clerk's misapplication and confusion regarding application of winning candidate, thus, the petition was no longer viable, for pre-proclamation controversies
Section 9 of Rule 35 of the COMELEC Rules of Procedure and this Court's resolution dated may no longer be entertained by the COMELEC after the winning candidates have been
September 4, 1990 amending Rule 141 of the Rules of Court. An election protest falls within proclaimed. It might even be claimed with some reason that private respondent, by resorting to
the exclusive original jurisdiction of the Regional Trial Court, in which case the Rules of Court the wrong remedy, abandoned his pre-proclamation case earlier filed. 17

will apply, and that the COMELEC Rules of Procedure is primarily intended to govern election
cases before that tribunal. But the Court declared that this decision must not provide relief to Nonetheless, private respondent's belief that he no longer had a pending case before the
parties in future cases involving inadequate payment of filing fees in election cases. Our COMELEC because he deemed it abandoned upon filing of his protest is not a valid reason for
decisions in Pahilan and Gatchalian bar any claim of good faith, excusable negligence or non-disclosure of the pendency of said pre-proclamation case. Note that the COMELEC
mistake in any failure to pay the full amount of filing fees in election cases. dismissed private respondent's pre-proclamation case only on July 3, 1998. Before the
dismissal, said case was legally still pending resolution. Similarly, the fact that private
In Miranda vs. Castillo, private respondents each paid per assessment the amount of P465.00 respondent's protest was not based on the same cause of action as his pre-proclamation case
as filing fees. Of this amount, P414.00 was allocated for the JDF, P 10.00 for legal research is not a valid excuse for not complying with the required disclosure in the certification against
fund, P5.00 for victim compensation fee, and only the amount of P32.00 was regarded as filing forum shopping. The requirement to file a certificate of non-forum shopping is mandatory.
fee. The Court considered the amount as partial payment of the P300.00 filing fee under the Failure to comply with this requirement cannot be excused by the fact that a party is not guilty
COMELEC rules and required payment of the deficiency in the amount of P268.00. But then of forum shopping. The rule applies to any complaint, petition, application or other initiatory
again, the Court reiterated the caveat that in view of Pahilan, Gatchalian, and Loyola cases pleading, regardless of whether the party filing it has actually committed forum shopping.
we would no longer tolerate any mistake in the payment of the full amount of filing fees for Every party filing any initiatory pleading is required to swear under oath that he has not and
election cases filed after the promulgation of the Loyola decision on March 27, 1997. will not commit forum shopping. Otherwise we would have an absurd situation, as in this case,
where the parties themselves would be the judge of whether their actions constitute a violation
Clearly then, errors in the payment of filing fees in election cases is no longer excusable. And of the rule, and compliance therewith would depend on their belief that they might or might not
the dismissal of the present case for that reason is, in our view, called for. have violated the requirement. Such interpretation of the requirement would defeat the very
purpose of the rule.
18

Besides, there is another reason to dismiss private respondent's election protest. We note that
the verification of aforesaid protest is defective. In the verification, private respondent merely Taking into account all the foregoing circumstances in this case, we are persuaded that
stated that he caused the preparation of his petition and he has read and understood all the respondent Regional Trial Court erred and committed grave abuse of discretion in failing to
allegations therein. Certainly, this is insufficient as private respondent failed to state that the
14  dismiss private respondent's election protest against petitioner. And to reiterate, respondent
contents of his election protest are true and correct of his persoral knowledge. Since the
15  COMELEC en banc had no jurisdiction to affirm the refusal of respondent trial court to dismiss
petition lacks proper verification, it should be treated as an unsigned pleading and must be private respondent's election protest.
dismissed. 16

WHEREFORE, the instant petition is GRANTED. The assailed RESOLUTION of public


Further, we find that private respondent did not comply with the required certification against respondent COMELEC is hereby ANNULLED AND SET ASIDE. The temporary restraining
forum shopping.  Private respondent successively filed a "petition for annulment of the
1âwphi1
order issued by this Court on September 21, 1999, is made permanent. The Regional Trial
proclamation/exclusion of election return" and an election protest. Yet, he did not disclose in Court of Pinamalayan, Oriental Mindoro, Branch 42, is hereby ordered to DISMISS election
his election protest that he earlier filed a petition for annulment of proclamation/exclusion of protest EC No. 31-98. Costs against private respondent.
election returns.
SO ORDERED.
It could be argued that private respondent's petition for annulment of proclamation/exclusion of
election returns was a pre-proclamation case. The issues raised in that petition pertain to the
Governor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the
election returns.

On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number
of votes, filed with the Comelec, an election protest challenging the results in a total of 201

precincts. The case was assigned to the First Division (formerly Second), Commission on

Elections.6

On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed
resolution in the case. To such proposed ponencia, Commissioner Julio F. Desamito
dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said
that she would "wish to see both positions, if any, to make her (my) final decision."
7

In the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On
March 3, 2000, the President of the Philippines appointed Commissioner Rufino S. Javier to
G.R. No. 143398               October 25, 2000 the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4,
2000.
RUPERTO A. AMBIL, JR., petitioner,
vs. On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported
THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) resolution promulgated on February 14, 2000, signed by Commissioner Guiani and
and JOSE T. RAMIREZ, respondents. Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondent
Ramirez who was declared winner by a margin of 1,176 votes. On February 28, 2000, the

DECISION Comelec, First Division, declared that the thirteen-page resolution "is a useless scrap of paper
which should be ignored by the parties in this case there being no promulgation of the
PARDO, J.: Resolution in the instant case." 
9

The case before the Court is a special civil action for certiorari and prohibition with preliminary On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of
injunction or temporary restraining order seeking to nullify the order dated June 15, 2000 of the the resolution in the case (EPC Case No. 98-29) on April 6, 2000, at 2:00 in the
Commission on Elections (Comelec), First Division, giving notice to the parties of the
1  afternoon. However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation
10 

promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus challenging the validity of the purported Guiani resolution. The Comelec, First Division, acting
Ruperto A. Ambil, Jr., Election Protest Case No. 98-29, on June 20, 2000, at 2:00 in the on the motion, on the same date, postponed the promulgation until this matter is resolved. 11

afternoon and to prohibit the respondent Commission on Election from promulgating the so
called "Guiani ponencia." 2
On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G.
Tancangco and Rufino S. Javier, sent a joint memorandum to Commissioner Julio F.
The facts are as follows: Desamito, presiding Commissioner, stating:

Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the "Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En
position of Governor, Eastern Samar, during the May 11, 1998 elections. On May 16, 1998,
3  Banc that this case be submitted for a reconsultation by the members of the First Division, it is
the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elected our position that we promulgate as soon as possible the Guiani Resolution of the case. This is
notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No.
73777) and other doctrinal cases on the issue. After all, this Commission stood pat on its To begin with, the power of the Supreme Court to review decisions of the Comelec is
policy that what is controlling is the date the ponente signed the questioned Resolution as prescribed in the Constitution, as follows:
what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).
"Section 7. Each commission shall decide by a majority vote of all its members any case or
"In view of the foregoing, we recommend that we proceed with the promulgation of the subject matter brought before it within sixty days from the date of its submission for decision or
resolution and let the aggrieved party challenge it through a Motion for Reconsideration before resolution. A case or matter is deemed submitted for decision or resolution upon the filing of
the Commission en banc or through a certiorari case before the Supreme Court. 12
the last pleading, brief, or memorandum required by the rules of the commission or by the
commission itself. Unless otherwise provided by this constitution or by law, any decision,
On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, order, or ruling of each commission may be brought to the Supreme Court on certiorari
issued an order setting the promulgation of the resolution in the case on June 20, 2000, at by the aggrieved party within thirty days from receipt of a copy thereof." [emphasis 21 

2:00 o’clock in the afternoon.13 supplied]

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed "We have interpreted this provision to mean final orders, rulings and decisions of the
the instant petition.
14 COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This decision
22 

must be a final decision or resolution of the Comelec en banc, not of a division, certainly
23  24 

Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the not an interlocutory order of a division. The Supreme Court has no power to review via
25 

resolution of the case (EPC Case No. 98-29) on June 20, 2000 at 2:00 in the afternoon, and certiorari, an interlocutory order or even a final resolution of a Division of the Commission on
prohibiting the Comelec, First Division, from promulgating the purported Guiani resolution and Elections.
26

directing the Comelec, First Division, to deliberate anew on the case and to promulgate the
resolution reached in the case after such deliberation.
15 The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the
Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964 Revised
On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedure, as
from implementing the June 15, 2000 order for the promulgation of the resolution set on June amended. 27

20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondents to
comment on the petition within ten (10) days from notice. 16 Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A
On July 10, 2000, respondent Ramirez filed his comment. Respondent Ramirez admitted that
17  motion for reconsideration is a plain and adequate remedy provided by law. Failure to 28 

the proposed resolution of Commissioner Guiani was no longer valid after his retirement on abide by this procedural requirement constitutes a ground for dismissal of the petition. 29

February 15, 2000. He submitted that Comelec, First Division, its membership still constituting
18 

a majority, must elevate the protest case to the Comelec en banc until resolved with finality.
19 In like manner, a decision, order or resolution of a division of the Comelec must be reviewed
by the Comelec en banc via a motion for reconsideration before the final en banc decision may
In his comment filed on August 29, 2000, the Solicitor General interposed no objection to the be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion for
petition.
20 reconsideration is mandatory. Article IX-C, Section 3, 1987 Constitution provides as follows:
30 

At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of "Section 3. The Commission on Elections may sit en banc or in two divisions, and shall
the resolution in the case (EPC Case No. 98-29) acted without jurisdiction or with grave abuse promulgate its rules of procedure in order to expedite disposition of election cases, including
of discretion amounting to lack of jurisdiction. pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc. [emphasis supplied]
We find the petition without merit.
Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be choice but to seek recourse in the Supreme Court. Such important fact is not present in the
raised to the en banc via a motion for reconsideration. 31
case at bar.

The case at bar is an election protest involving the position of Governor, Eastern Samar. It is 32 
We must emphasize that what is questioned here is the order dated June 15, 2000, which is a
within the original jurisdiction of the Commission on Elections in division. Admittedly, petitioner
33 
mere notice of the promulgation of the resolution in EPC Case No. 98-29. We quote the order
did not ask for a reconsideration of the division’s resolution or final decision . In fact, there was
34 
in question in full, to wit:
really no resolution or decision to speak of  because there was yet no promulgation, which
35 

was still scheduled on June 20, 2000 at 2:00 o’clock in the afternoon. Petitioner went directly "Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint
to the Supreme Court from an order of "promulgation of the Resolution of this case" by the Memorandum of Commissioners Luzviminda G. Tancangco and Rufino S. Javier to the
First Division of the Comelec. 36
Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states:

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of ‘In view of the foregoing, we recommend that we proceed with the promulgation of the subject
the Comelec in division can not dispense with the filing of a motion for reconsideration of a resolution and let the aggrieved party challenge it through a Motion for Reconsideration before
decision, resolution or final order of the Division of the Commission on Elections because the the Commission en banc or through a certiorari case before the Supreme Court.’
case would not reach the Comelec en banc without such motion for reconsideration having
been filed and resolved by the Division. the promulgation of the Resolution in this case is hereby set on Tuesday, June 20,
2000 at 2:00 o’clock in the afternoon at the Comelec Session Hall, Intramuros, Manila.
The instant case does not fall under any of the recognized exceptions to the rule in certiorari
cases dispensing with a motion for reconsideration prior to the filing of a petition. In truth, the37 
No further motion for postponement of the promulgation shall be entertained.
exceptions do not apply to election cases where a motion for reconsideration
is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final
The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of
decision is what is reviewable via certiorari before the Supreme Court. 38

this Order through telegram and by registered mail or personal delivery.


We are aware of the ruling in Kho v. Commission on Elections, that "in a situation such as this
39 

"SO ORDERED.
where the Commission on Elections in division committed grave abuse of discretion or acted
without or in excess of jurisdiction in issuing interlocutory orders relative to an action pending
before it and the controversy did not fall under any of the instances mentioned in Section 2, "Given this 15th day of June, 2000 in the City of Manila, Philippines.
Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved party is not to refer
the controversy to the Commission en banc as this is not permissible under its present rules FOR THE DIVISION:
but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court."
This is the case relied upon by the dissenting justice to support the proposition that resort to [Sgd.] JULIO F. DESAMITO
the Supreme Court from a resolution of a Comelec Division is allowed. Unfortunately, the Kho
40  Presiding Commissioner" 44

case has no application to the case at bar. The issue therein is, may the Commission on
Elections in division admit an answer with counter-protest after the period to file the There is nothing irregular about the order of promulgation of the resolution in the case, except
same has expired? The Comelec First Division admitted the answer with counter-protest of
41 
in the mind of suspicious parties. Perhaps what was wrong in the order was the reference to
the respondent. The Supreme Court declared such order void for having been issued with the memorandum of the two commissioners that was not necessary and was a superfluity,
grave abuse of discretion tantamount to lack of jurisdiction. However, an important moiety in
42 
or excessus in linguae. All the members of the Division were incumbent Commissioners of
the Kho case was not mentioned in the dissent. It is that the Comelec, First the Commission on Elections (COMELEC) and had authority to decide the case in the
Division, denied the prayer of petitioner for the elevation of the case to en banc because the Division. What appears to be patently null and void is the so-called Guiani resolution if it is
orders of admission were mere interlocutory orders. Hence, the aggrieved party had no
43 
the one to be promulgated. We cannot assume that the Comelec will promulgate a void
resolution and violate the Constitution and the law. We must assume that the members of the Division issued an order where Commissioner Tancangco expressed her reservations and
Commission in Division or en banc are sworn to uphold and will obey the Constitution. stated that she wished to see both positions, if any, before she made her final decision. 52

Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date
contents of the sealed envelope containing the resolution to be promulgated on June 20, 2000, previously fixed, of which notice shall be served in advance upon the parties or their
simply because it has not been promulgated! attorneys personally or by registered mail or by telegram. 53

It may be true that the parties received a copy of what purports to be the Guiani It is jurisprudentially recognized that at any time before promulgation of a decision or
resolution, declaring respondent Jose T. Ramirez the victor in the case. Such Guiani
45 
resolution, the ponente may change his mind. Moreover, in this case, before a final decision
54 

resolution is admitted by the parties and considered by the Commission on Elections as or resolution could be promulgated, the ponente retired and a new commissioner appointed.
void. The Solicitor General submitted an advice that the same resolution is deemed vacated And the incoming commissioner has decided to take part in the resolution of the case. It is
by the retirement of Commissioner Guiani on February 15, 2000. It can not be promulgated
46 
presumed that he had taken the position of his predecessor because he co-signed the request
anymore for all legal intents and purposes. for the promulgation of the Guiani resolution. 55

We rule that the so-called Guiani resolution is void for the following reasons: If petitioner were afraid that what would be promulgated by the Division was the Guiani
resolution, a copy of which he received by mail, which, as heretofore stated, was not
First: A final decision or resolution becomes binding only after it is promulgated and not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could
before. Accordingly, one who is no longer a member of the Commission at the time the final seek reconsideration of such patently void resolution and thereby the case would be elevated
decision or resolution is promulgated cannot validly take part in that resolution or to the Commission en banc. 56

decision. Much more could he be the ponente of the resolution or decision. The resolution or
47 

decision of the Division must be signed by a majority of its members and duly promulgated. Considering the factual circumstances, we speculated ex mero motu that the Comelec would
promulgate a void resolution.
Commissioner Guiani might have signed a draft ponencia prior to his retirement from office,
but when he vacated his office without the final decision or resolution having been "The sea of suspicion has no shore, and the court that embarks upon it is without rudder or
promulgated, his vote was automatically invalidated. Before that resolution or decision is
48 
compass." We must not speculate that the Comelec would still promulgate a void resolution
57 

so signed and promulgated, there is no valid resolution or decision to speak of. 49


despite knowledge that it is invalid or void ab initio.

Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, Consequently, the filing of the instant petition before this Court was premature. Petitioner
denied the release or promulgation of the Guiani resolution. He disowned the initials on the failed to exhaust adequate administrative remedies available before the COMELEC.
face of the first page of the resolution showing its promulgation on February 14, 2000, and
said that it was a forgery. There is no record in the Electoral Contests and Adjudication In a long line of cases, this Court has held consistently that "before a party is allowed to seek
Department (ECAD) of the Commission on Election that a "resolution on the main merits of the the intervention of the court, it is a pre-condition that he should have availed of all the means
case was promulgated." 50
of administrative processes afforded him. Hence, if a remedy within the administrative
machinery can still be resorted to by giving the administrative officer concerned every
Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the opportunity to decide on a matter that comes within his jurisdiction, then such remedy should
"alleged thirteen (13) page resolution" for being "a useless scrap of paper which should be exhausted first before the court’s judicial power can be sought. The premature invocation of
be ignored by the parties" there being no promulgation of the resolution in the case. 51
court’s intervention is fatal to one’s cause of action." 58

Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani "This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is
resolution. On the date that it was purportedly promulgated, which was February 14, 2000, the a pre-requisite to the viability of a special civil action for certiorari, unless the party who avails
of the latter can convincingly show that his case falls under any of the following exceptions to The Court orders the Commission on Elections, First Division, to resolve with all deliberate
the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) dispatch Election Protest Case No. 98-29 and to promulgate its resolution thereon adopted by
where its application may cause great and irreparable damage, (4) where the controverted majority vote within thirty (30) days from notice hereof.
acts violate due process, (5) failure of a high government official from whom relief is sought to
act on the matter, and seeks when the issue for non-exhaustion of administrative remedies The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved,
has been rendered moot." 59
effective immediately.

"This doctrine of exhaustion of administrative remedies was not without its practical and legal No costs.
reasons, for one thing, availment of administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies. It is no less true to state that the courts of SO ORDERED.
justice for reasons of comity and convenience will shy away from a dispute until the system of
administrative redress has been completed and complied with so as to give the administrative
agency concerned every opportunity to correct its error and to dispose of the case. However,
we are not amiss to reiterate that the principal of exhaustion of administrative remedies as
tested by a battery of cases is not an ironclad rule. This doctrine is a relative one and its
flexibility is called upon by the peculiarity and uniqueness of the factual and circumstantial
settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2)
when the issue involved is purely a legal question, (3) when the administrative action is
patently illegal amounting to lack or excess of jurisdiction, (4) when there is estoppel on the
part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the
respondent is a department secretary whose acts as an alter ego of the president bears the
implied and assumed approval of the latter, (7) when to require exhaustion of administrative
remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9)
when the subject matter is a private land in land case proceedings, (10) when the rule does
not provide a plain, speedy and adequate remedy, and (11) when there are circumstances
indicating the urgency of judicial intervention." The administrative authorities must be given an
60 

opportunity to act and correct the errors committed in the administrative forum. Only after
61 

administrative remedies are exhausted may judicial recourse be allowed. 62

This case does not fall under any of the exceptions and indeed, as heretofore stated, the
exceptions do not apply to an election case within the jurisdiction of the Comelec in Division.

Hence, the petition at bar must be dismissed for prematurity. "Failure to exhaust administrative
remedies is fatal to a party's cause of action and a dismissal based on that ground is
tantamount to a dismissal based on lack of cause of action." 63

WHEREFORE, the Court hereby DISMISSES the petition for prematurity.


The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission


on Elections (Comelec) en banc Resolution No. 98-1419 dated April 21, 1998. In the said

Resolution, the poll body

RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any


other groups, its agents or representatives from conducting such exit survey and to
authorize the Honorable Chairman to issue the same.

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable
source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct
radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the
elections for national officials particularly for President and Vice President, results of which
shall be [broadcast] immediately." The electoral body believed that such project might conflict

with the official Comelec count, as well as the unofficial quick count of the National Movement
for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner
ABS-CBN to undertake the exit survey.

On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner.
We directed the Comelec to cease and desist, until further orders, from implementing the
assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit
polls were actually conducted and reported by media without any difficulty or problem.

The Issues
G.R. No. 133486           January 28, 2000
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with
ABS-CBN BROADCASTING CORPORATION, petitioner, grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the
vs. issuance of a restraining order enjoining the petitioner or any [other group], its agents or
COMMISSION ON ELECTIONS, respondent. representatives from conducting exit polls during the . . . May 11 elections."
3

PANGANIBAN, J.: In his Memorandum, the solicitor general, in seeking to dismiss the Petition, brings up

additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
The holding of exit polls and the dissemination of their results through mass media constitute reconsideration of the assailed Comelec Resolution.
an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban
them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the The Court's Ruling
contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the
evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the The Petition is meritorious.

Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls,
without transgressing in any manner the fundamental rights of our people. Procedural Issues:
Mootness and Prematurity An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially
The solicitor general contends that the petition is moot and academic, because the May 11, asking randomly selected voters whom they have voted for, immediately after they have
1998 election has already been held and done with. Allegedly, there is no longer any actual officially cast their ballots. The results of the survey are announced to the public, usually
controversy before us. through the mass media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit polls had not
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, been resorted to until the recent May 11, 1998 elections.
1998 election, its implications on the people's fundamental freedom of expression transcend
the past election. The holding of periodic elections is a basic feature of our democratic In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member
government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the mass media, committed to report balanced election-related data, including "the
of the issue now will only postpone a task that could well crop up again in future elections. 6 exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative
regions."
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It argues that the holding of exit polls and the nationwide reporting their results are valid
It has the symbolic function of educating bench and bar on the extent of protection given by exercises of the freedoms of speech and of the press. It submits that, in precipitately and
constitutional guarantees." Since the fundamental freedoms of speech and of the press are
7  unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely
being invoked here, we have resolved to settle, for the guidance of posterity, whether they abused its discretion and grossly violated the petitioner's constitutional rights.
likewise protect the holding of exit polls and the dissemination of data derived therefrom.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed
The solicitor general further contends that the Petition should be dismissed for petitioner's Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to
failure to exhaust available remedies before the issuing forum, specifically the filing of a motion its constitutional and statutory powers to promote a clean, honest, orderly and credible May
for reconsideration. 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the
ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the
This Court, however, has ruled in the past that this procedural requirement may be glossed voters," and that the surveys were designed "to condition the minds of people and cause
over to prevent a miscarriage of justice, when the issue involves the principle of social justice
8  confusion as to who are the winners and the [losers] in the election," which in turn may result
or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or
9  10  in "violence and anarchy."
when the need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available. 11 Public respondent further argues that "exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, ballots," in violation of Section 2, Article V of the Constitution; and relevant provisions of the
12 

only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy Omnibus Election Code. It submits that the constitutionally protected freedoms invoked by
13 

thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to petitioner "are not immune to regulation by the State in the legitimate exercise of its police
move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 power," such as in the present case.
elections. Moreover, not only is time of the essence; the Petition involves transcendental
constitutional issues. Direct resort to this Court through a special civil action for  certiorari is The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
therefore justified. and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
Main Issue: manipulated easily. He insists that these polls would sow confusion among the voters and
would undermine the official tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Validity of Conducting Exit Polls
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus comment or utterance must be "extremely serious and the degree of imminence
be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit extremely high" before the utterance can be punished. The danger to be guarded
polls? In answering this question, we need to review quickly our jurisprudence on the against is the "substantive evil" sought to be prevented. . . . 23

freedoms of speech and of the press.


The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if
Nature and Scope of Freedoms of Speech and of the Press the words uttered create a dangerous tendency which the state has a right to prevent,
then such words are punishable. It is not necessary that some definite or immediate
The freedom of expression is a fundamental principle of our democratic government. It "is a acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
'preferred' right and, therefore, stands on a higher level than substantive economic or other advocated in general terms. Nor is it necessary that the language used be reasonably
liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if
that freedom of thought and speech is the indispensable condition of nearly every other form the natural tendency and probable effect of the utterance be to bring about the
of freedom." 14 substantive evil which the legislative body seeks to prevent. 24

Our Constitution clearly mandates that no law shall be passed abridging the freedom of Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
speech or of the press. In the landmark case Gonzales v. Comelec, this Court enunciated
15  16  earlier decisions in Primicias v. Fugoso and American Bible Society v. City of Manila; as well
25  26 

that at the very least, free speech and a free press consist of the liberty to discuss publicly and as in later ones, Vera v. Arca, Navarro v. Villegas, Imbong v. Ferrer, Blo Umpar Adiong
27  28  29 

truthfully any matter of public interest without prior restraint. v. Comelec and, more recently, in Iglesia ni Cristo v. MTRCB. In setting the standard or test
30  31 

for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes:
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the "The question in every case is whether the words used are used in such circumstances and
truth, of securing participation by the people in social and political decision-making, and of are of such a nature as to create a clear and present danger that they will bring about the
maintaining the balance between stability and change. It represents a profound commitment
17  substantive evils that Congress has a right to prevent. It is a question of proximity and
to the principle that debates on public issues should be uninhibited, robust, and wide open. It 18  degree." 32

means more than the right to approve existing political beliefs or economic arrangements, to
lend support to official measures, or to take refuge in the existing climate of opinion on any of A limitation on the freedom of expression may be justified only by a danger of such substantive
public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, we stress 19  character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the
that the freedom encompasses the thought we hate, no less than the thought we agree with. danger must not only be clear but also present. "Present" refers to the time element; the
danger must not only be probable but very likely to be inevitable. The evil sought to be
33 

Limitations avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a
writing instrument. 34

The realities of life in a complex society, however, preclude an absolute exercise of the
freedoms of speech and of the press. Such freedoms could not remain unfettered and Justification for a Restriction
unrestrained at all times and under all circumstances. They are not immune to regulation by
20 

the State in the exercise of its police power. While the liberty to think is absolute, the power to
21  Doctrinally, the Court has always ruled in favor of the freedom of expression, and any
express such thought in words and deeds has limitations. restriction is treated an exemption. The power to exercise prior restraint is not to be presumed;
rather the presumption is against its validity. And it is respondent's burden to overthrow such
35 

In Cabansag v. Fernandez this Court had occasion to discuss two theoretical test in
22  presumption. Any act that restrains speech should be greeted with furrowed brows, so it has
36 

determining the validity of restrictions to such freedoms, as follows: been said.

These are the "clear and present danger" rule and the "dangerous tendency" rule. The To justify a restriction, the promotion of a substantial government interest must be clearly
first, as interpreted in a number of cases, means that the evil consequence of the shown. Thus:
37 
A government regulation is sufficiently justified if it is within the constitutional power of highly unreliable. The probability that the results of such exit poll may not be in harmony with
the government, if it furthers an important or substantial government interest; if the the official count made by the Comelec . . . is ever present. In other words, the exit poll has a
governmental interest is unrelated to the suppression of free expression; and if the clear and present danger of destroying the credibility and integrity of the electoral process."
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest.38
Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as
Hence, even though the government's purposes are legitimate and substantial, they cannot be much as possible be representative or reflective of the general sentiment or view of the
pursued by means that broadly stifle fundamental personal liberties, when the end can be community or group polled. Second, the survey result is not meant to replace or be at par with
more narrowly achieved. 39
the official Comelec count. It consists merely of the opinion of the polling group as to who the
electorate in general has probably voted for, based on the limited data gathered from polled
The freedoms of speech and of the press should all the more be upheld when what is sought individuals. Finally, not at stake here are the credibility and the integrity of the elections, which
to be curtailed is the dissemination of information meant. to add meaning to the equally vital are exercises that are separate and independent from the exit polls. The holding and the
right of suffrage. We cannot support any ruling or order "the effect of which would be to nullify
40  reporting of the results of exit polls cannot undermine those of the elections, since the former
so vital a constitutional right as free speech." When faced with borderline situations in which
41  is only part of the latter. If at all, the outcome of one can only be indicative of the other.
the freedom of a candidate or a party to speak or the freedom of the electorate to know is
invoked against actions allegedly made to assure clean and free elections, this Court shall The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and
lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the
power to regulate should not be antagonistic. There can be no free and honest elections if, in assailed Comelec Resolution is too broad, since its application is without qualification as to
the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. 42
whether the polling is disruptive or not. Concededly, the Omnibus Election Code prohibits
44 

disruptive behavior around the voting centers. There is no showing, however, that exit polls or
45 

True, the government has a stake in protecting the fundamental right to vote by providing the means to interview voters cause chaos in voting centers. Neither has any evidence been
voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot presented proving that the presence of exit poll reporters near an election precinct tends to
and to preserve the sanctity and the integrity of the electoral process. However, in order to create disorder or confuse the voters.
justify a restriction of the people's freedoms of speech and of the press, the state's
responsibility of ensuring orderly voting must far outweigh them. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on
These freedoms have additional importance, because exit polls generate important research the voters' answer to the survey questions will forever remain unknown and unexplored.
data which may be used to study influencing factors and trends in voting behavior. An absolute Unless the ban is restrained, candidates, researchers, social scientists and the electorate in
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of general would be deprived of studies on the impact of current events and of election-day and
exit poll data not only for election-day projections, but also for long-term research. 43 other factors on voters' choices. 1âwphi1.nêt

Comelec Ban on Exit Polling In Daily Herald Co. v. Munro, the US Supreme Court held that a statute, one of the purposes
46 

of which was to prevent the broadcasting of early returns, was unconstitutional because such
In the case at bar, the Comelec justifies its assailed Resolution as having been issued purpose was impermissible, and the statute was neither narrowly tailored to advance a state
pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful interest nor the least restrictive alternative. Furthermore, the general interest of the State in
election. While admitting that "the conduct of an exit poll and the broadcast of the results insulating voters from outside influences is insufficient to justify speech regulation. Just as
thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailing election-day broadcasts and newspaper editorials for the reason that they might
curtailed if the exercise thereof creates a clear and present danger to the community or it has indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating
a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion speech via an exit poll restriction. 47

considering the randomness of selecting interviewees, which further make[s] the exit poll
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what
open any alternative channel of communication to gather the type of information obtained is forbidden is the association of voters with their respective votes, for the purpose of assuring
through exit polling. On the other hand, there are other valid and reasonable ways and means that the votes have been cast in accordance with the instructions of a third party. This result
to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be cannot, however, be achieved merely through the voters' verbal and confidential disclosure to
brought about by exit surveys. a pollster of whom they have voted for.

For instance, a specific limited area for conducting exit polls may be designated. Only In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
reasonable distance from the voting center. They may be required to explain to voters that the choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
latter may refuse interviewed, and that the interview is not part of the official balloting process. prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct
The pollsters may further be required to wear distinctive clothing that would show they are not of exit polls, without transgressing the fundamental rights of our people.
election officials. Additionally, they may be required to undertake an information campaign on
48 

the nature of the exercise and the results to be obtained therefrom. These measures, together WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued
election. by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities SO ORDERED.
are randomly selected in each province; (2) residences to be polled in such communities are
also chosen at random; (3) only individuals who have already voted, as shown by the indelible
ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the
poll results are released to the public only on the day after the elections. These precautions,
49 

together with the possible measures earlier stated, may be undertaken to abate the Comelec's
fear, without consequently and unjustifiably stilling the people's voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media
and the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly
conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and
credible elections; and for the elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the
ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as
to be identified. Also proscribed is finding out the contents of the ballots cast by particular
The antecedents are not disputed. 1âwphi1.nêt

On 25 March 1998, DOMINO filed his certificate of candidacy for the position of
Representative of the Lone Legislative District of the Province of Sarangani indicating in item
nine (9) of his certificate that he had resided in the constituency where he seeks to be elected
for one (1) year and two (2) months immediately preceding the election. 3

On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B. Java, Juan P.
Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied with the COMELEC a Petition to
Deny Due Course to or Cancel Certificate of Candidacy, which was docketed as SPA No. 98-
022 and assigned to the Second Division of the COMELEC. Private respondents alleged that
DOMINO, contrary to his declaration in the certificate of candidacy, is not a resident, much
less a registered voter, of the province of Sarangani where he seeks election. To substantiate
their allegations, private respondents presented the following evidence:

1. Annex "A" — the Certificate of Candidacy of respondent for


the position of Congressman of the Lone District of the
Province of Sarangani filed with the Office of the Provincial
Election Supervisor of Sarangani on March 25, 1998, where in
item 4 thereof he wrote his date of birth as December 5, 1953;
in item 9, he claims he have resided in the constituency where
he seeks election for one (1) year and two (2) months; and, in
item 10, that he is registered voter of Precinct No. 14A-1,
G.R. No. 134015 July 19, 1999 Barangay Poblacion, Alabel, Sarangani;

JUAN DOMINO, petitioner, 2. Annex "B" — Voter's Registration Record with SN 31326504


vs. dated June 22, 1997 indicating respondent's registration at
COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR., EDDY B. JAVA, JUAN P. Precinct No. 4400-A, Old Balara, Quezon City;
BAYONITO, JR., ROSARIO SAMSON and DIONISIO P. LIM, SR., respondent, LUCILLE
CHIONGBIAN-SOLON, intervenor. 3. Annex "C" — Respondent's Community Tax Certificate No.
11132214C dated January 15, 1997;
DAVIDE, JR., CJ.:
4. Annex "D" — Certified true copy of the letter of Herson D.
Challenged in this case for certiorari with a prayer for preliminary injunction are the Resolution Dema-ala, Deputy Provincial & Municipal Treasurer of Alabel,
of 6 May 1998  of the Second Division of the Commission on Elections (hereafter COMELEC),
1 Sarangani, dated February 26, 1998, addressed to Mr.
declaring petitioner Juan Domino (hereafter DOMINO) disqualified as candidate for Conrado G. Butil, which reads:
representative of the Lone Legislative District of the Province of Sarangani in the 11 May 1998
elections, and the Decision of 29 May 1998  of the COMELEC en banc denying DOMINO's
2 In connection with your letter of even date, we are furnishing
motion for reconsideration. you herewith certified xerox copy of the triplicate copy of
COMMUNITY TAX CERTIFICATE NO. 11132214C in the "[T]he undersigned's previous residence is at 24 Bonifacio
name of Juan Domino. Street, Ayala Heights, Quezon City, III District, Quezon City;
wherein he is a registered voter" and "that for business and
Furthermore, Community Tax Certificate No. 11132212C of the residence purposes, the undersigned has transferred and
same stub was issued to Carlito Engcong on September 5, conducts his business and reside at Barangay Poblacion,
1997, while Certificate No. 11132213C was also issued to Mr. Alabel, Province of Sarangani prior to this application;"
Juan Domino but was cancelled and serial no. 11132215C was
issued in the name of Marianita Letigio on September 8, 1997. 9. Annex "I" — Copy of the SWORN APPLICATION FOR OF
CANCELLATION OF THE VOTER'S [TRANSFER OF]
5. Annex "E" — The triplicate copy of the Community Tax PREVIOUS REGISTRATION of respondent subscribed and
Certificate No. 11132214C in the name of Juan Domino dated sworn to on 22 October 1997 before Election Officer Mantil
September 5, 1997; Allim at Alabel, Sarangani. 4

6. Annex "F" — Copy of the letter of Provincial Treasurer For his defense, DOMINO maintains that he had complied with the one-year residence
Lourdes P. Riego dated March 2, 1998 addressed to Mr. requirement and that he has been residing in Sarangani since January 1997. In support of the
Herson D. Dema-ala, Deputy Provincial Treasurer and said contention, DOMINO presented before the COMELEC the following exhibits, to wit:
Municipal Treasurer of Alabel, Sarangani, which states:
1. Annex "1" — Copy of the Contract of Lease between Nora
For easy reference, kindly turn-over to the undersigned for Dacaldacal as Lessor and Administrator of the properties of
safekeeping, the stub of Community Tax Certificate containing deceased spouses Maximo and Remedios Dacaldacal and
Nos. 11132201C-11132250C issued to you on June 13, 1997 respondent as Lessee executed on January 15, 1997,
and paid under Official Receipt No. 7854744. subscribed and sworn to before Notary Public Johnny P.
Landero;
Upon request of Congressman James L. Chiongbian.
2. Annex "2" — Copy of the Extra-Judicial Settlement of Estate
7. Annex "G" — Certificate of Candidacy of respondent for the with Absolute Deed of sale executed by and between the heirs
position of Congressman in the 3rd District of Quezon City for of deceased spouses Maximo and Remedios Dacaldacal,
the 1995 elections filed with the Office of the Regional Election namely: Maria Lourdes, Jupiter and Beberlie and the
Director, National Capital Region, on March 17, 1995, where, in respondent on November 4, 1997, subscribed and sworn to
item 4 thereof, he wrote his birth date as December 22, 1953; before Notary Public Jose A. Alegario;
in item 8 thereof his "residence in the constituency where I
seek to be elected immediately preceding the election" as 3 3. Annex "3" — True Carbon Xerox copy of the Decision dated
years and 5 months; and, in item 9, that he is a registered voter January 19, 1998, of the Metropolitan Trial Court of Metro
of Precinct No. 182, Barangay Balara, Quezon City; Manila, Branch 35, Quezon City, in Election Case NO. 725
captioned as "In the Matter of the Petition for the Exclusion
8. Annex "H" — a copy of the APPLICATION FOR TRANSFER from the List of voters of Precinct No. 4400-A Brgy. Old Balara,
OF REGISTRATION RECORDS DUE TO CHANGE OF Quezon City, Spouses Juan and Zorayda Domino, Petitioners,
RESIDENCE of respondent dated August 30, 1997 addressed -versus- Elmer M. Kayanan, Election Officer, Quezon City,
to and received by Election Officer Mantil Alim, Alabel, District III, and the Board of Election Inspectors of Precinct No.
Sarangani, on September 22, 1997, stating among others, that
4400-A, Old Balara, Quezon City, Respondents." The showing the spouses Juan and Zorayda Bailon Domino listed
dispositive portion of which reads: as numbers 111 and 112 both under Precinct No. 14A1, the
last two names in the slate indicated as transferees without
1. Declaring the registration of petitioners as VRR numbers and their application dated August 30, 1997 and
voters of Precinct No. 4400-A, Barangay Old September 30, 1997, respectively.
Balara, in District III Quezon City as completely
erroneous as petitioners were no longer 6. Annex "6" — same as Annex "5"
residents of Quezon City but of Alabel,
Sarangani where they have been residing since 7. Annex "6-a" — Copy of the Sworn Application for
December 1996; Cancellation of Voter's Previous Registration (Annex "I",
Petition);
2. Declaring this erroneous registration of
petitioners in Quezon City as done in good faith 8. Annex "7" — Copy of claim card in the name of respondent
due to an honest mistake caused by showing his VRR No. 31326504 dated October 20, 1997 as a
circumstances beyond their control and without registered voter of Precinct No. 14A1, Barangay Poblacion,
any fault of petitioners; Alabel, Sarangani;

3. Approving the transfer of registration of 9. Annex "7-a" — Certification dated April 16, 1998, issued by
voters of petitioners from Precint No. 4400-A of Atty. Elmer M. Kayanan, Election Officer IV, District III, Quezon
Barangay Old Balara, Quezon City to Precinct City, which reads:
No. 14A1 of Barangay Poblacion of Alabel,
Sarangani; and This is to certify that the spouses JUAN and ZORAYDA
DOMINO are no longer registered voters of District III, Quezon
4. Ordering the respondents to immediately City. Their registration records (VRR) were transferred and are
transfer and forward all the election/voter's now in the possession of the Election Officer of Alabel,
registration records of the petitioners in Quezon Sarangani.
City to the Election Officer, the Election
Registration Board and other Comelec Offices This certification is being issued upon the request of Mr. JUAN
of Alabel, Sarangani where the petitioners are DOMINO.
obviously qualified to excercise their respective
rights of suffrage.
10. Annex "8" — Affidavit of Nora Dacaldacal and Maria
Lourdes Dacaldacal stating the circumstances and incidents
4. Annex "4" — Copy of the Application for Transfer of detailing their alleged acquaintance with respondent.
Registration Records due to Change of Residence addressed
to Mantil Alim, COMELEC Registrar, Alabel, Sarangani, dated
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of the
August 30, 1997.
uniform affidavits of witness Myrna Dalaguit, Hilario Fuentes,
Coraminda Lomibao and Elena V. Piodos subscribed and
5. Annex "5" — Certified True Copy of the Notice of Approval of sworn to before Notary Public Bonifacio F. Doria, Jr., on April
Application, the roster of applications for registration approved 18, 1998, embodying their alleged personal knowledge of
by the Election Registration Board on October 20, 1997, respondent's residency in Alabel, Sarangani;
12. Annex "8-e" — A certification dated April 20, 1998, All told, petitioner's evidence conspire to attest to respondent's lack of
subscribed and sworn to before Notary Public Bonifacio, residence in the constituency where he seeks election and while it may be
containing a listing of the names of fifty-five (55) residents of conceded that he is a registered voter as contemplated under Section 12 of
Alabel, Sarangani, declaring and certifying under oath that they R.A. 8189, he lacks the qualification to run for the position of Congressman for
personally know the respondent as a permanent resident of the Lone District of the Province of Sarangani.
6

Alabel, Sarangani since January 1997 up to present;


On 11 May 1998, the day of the election, the COMELEC issued Supplemental Omnibus
13. Annexes "9", "9-a" and "9-b" — Copies of Individual Income Resolution No. 3046, ordering that the votes cast for DOMINO be counted but to suspend the
Tax Return for the year 1997, BIR form 2316 and W-2, proclamation if winning, considering that the Resolution disqualifying him as candidate had not
respectively, of respondent; and, yet become final and executory. 7

14. Annex "10" — The affidavit of respondent reciting the The result of the election, per Statement of Votes certified by the Chairman of the Provincial
chronology of events and circumstances leading to his Board of Canvassers,  shows that DOMINO garnered the highest number of votes over his
8

relocation to the Municipality of Alabel, Sarangani, appending opponents for the position of Congressman of the Province of Sarangani.
Annexes "A", "B", "C", "D", "D-1", "E", "F", "G" with sub-
markings "G-1" and "G-2" and "H" his CTC No. 111`32214C On 15 May 1998, DOMINO filed a motion for reconsideration of the Resolution dated 6 May
dated September 5, 1997, which are the same as Annexes "1", 1998, which was denied by the COMELEC en banc in its decision dated 29 May 1998. Hence,
"2", "4", "5", "6-a", "3", "7", "9" with sub-markings "9-a" and "9- the present Petition for Certiorari with prayer for Preliminary Mandatory Injunction alleging, in
b" except Annex "H". 5
the main, that the COMELEC committed grave abuse of discretion amounting to excess or
lack of jurisdiction when it ruled that he did not meet the one-year residence requirement.
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution declaring DOMINO
disqualified as candidate for the position of representative of the lone district of Sarangani for On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary Restraining Order,
lack of the one-year residence requirement and likewise ordered the cancellation of his the Court directed the parties to maintain the status quo prevailing at the time of the filing of
certificate of candidacy, on the basis of the following findings: the instant petition. 9

What militates against respondent's claim that he has met the residency On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter INTERVENOR), the candidate
requirement for the position sought is his own Voter's Registration Record No. receiving the second highest number of votes, was allowed by the Court to
31326504 dated June 22, 1997 [Annex "B", Petition] and his address indicated Intervene.  INTERVENOR in her Motion for Leave to Intervene and in her Comment in
10

as 24 Bonifacio St., Ayala Heights, Old Balara, Quezon City. This evidence, Intervention   is asking the Court to uphold the disqualification of petitioner Juan Domino and
11

standing alone, negates all his protestations that he established residence at to proclaim her as the duly elected representative of Sarangani in the 11 May 1998 elections.
Barangay Poblacion, Alabel, Sarangani, as early as January 1997. It is highly
improbable, nay incredible, for respondent who previously ran for the same Before us DOMINO raised the following issues for resolution, to wit:
position in the 3rd Legislative District of Quezon City during the elections of
1995 to unwittingly forget the residency requirement for the office sought.
a. Whether or not the judgment of the Metropolitan Trial Court
of Quezon City declaring petitioner as resident of Sarangani
Counting, therefore, from the day after June 22, 1997 when respondent and not of Quezon City is final, conclusive and binding upon
registered at Precinct No. 4400-A, up to and until the day of the elections on the whole world, including the Commission on Elections.
May 11, 1998, respondent clearly lacks the one (1) year residency requirement
provided for candidates for Member of the House of Representatives under
Section 6, Article VI of the Constitution.
b. Whether or not petitioner herein has resided in the subject Thus, in Tan Cohon v. Election Registrar  we ruled that:
16

congressional district for at least one (1) year immediately


preceding the May 11, 1998 elections; and . . . It is made clear that even as it is here held that the order of the City Court
in question has become final, the same does not constitute res adjudicata as to
c. Whether or not respondent COMELEC has jurisdiction over any of the matters therein contained. It is ridiculous to suppose that such an
the petition a quo for the disqualification of petitioner.
12
important and intricate matter of citizenship may be passed upon and
determined with finality in such a summary and peremptory proceeding as that
The first issue. of inclusion and exclusion of persons in the registry list of voters. Even if the
City Court had granted appellant's petition for inclusion in the permanent list of
The contention of DOMINO that the decision of the Metropolitan Trial Court of Quezon City in voters on the allegation that she is a Filipino citizen qualified to vote, her
the exclusion proceedings declaring him a resident of the Province of Sarangani and not of alleged Filipino citizenship would still have been left open to question.
Quezon City is final and conclusive upon the COMELEC cannot be sustained.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January decision exceeded its
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the Omnibus Election Code, jurisdiction when it declared DOMINO a resident of the Province of Sarangani, approved and
over a petition to deny due course to or cancel certificate of candidacy. In the exercise of the ordered the transfer of his voter's registration from Precinct No. 4400-A of Barangay Old
said jurisdiction, it is within the competence of the COMELEC to determine whether false Balara, Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani. It is not within
representation as to material facts was made in the certificate of candidacy, that will include, the competence of the trial court, in an exclusion proceedings, to declare the challenged voter
among others, the residence of the candidate. a resident of another municipality. The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the list of voters or to declare that the
challenged voter is not qualified to vote in the precint in which he is registered, specifying the
The determination of the Metropolitan Trial Court of Quezon City in the exclusion proceedings
ground of the voter's disqualification. The trial court has no power to order the change or
as to the right of DOMINO to be included or excluded from the list of voters in the precinct
transfer of registration from one place of residence to another for it is the function of the
within its territorial jurisdicton, does not preclude the COMELEC, in the determination of
election Registration Board as provided under Section 12 of R.A. No. 8189.   The only effect
17

DOMINO's qualification as a candidate, to pass upon the issue of compliance with the
of the decision of the lower court excluding the challenged voter from the list of voters, is for
residency requirement.
the Election Registration Board, upon receipt of the final decision, to remove the voter's
registration record from the corresponding book of voters, enter the order of exclusion therein,
The proceedings for the exclusion or inclusion of voters in the list of voters are summary in and thereafter place the record in the inactive file.
18

character. Thus, the factual findings of the trial court and its resultant conclusions in the
exclusion proceedings on matters other than the right to vote in the precinct within its territorial
Finally, the application of the rule on res judicata is unavailing. Identity of parties, subject
jurisdiction are not conclusive upon the COMELEC. Although the court in inclusion or
matter and cause of action are indispensable requirements for the application of said doctrine.
exclusion proceedings may pass upon any question necessary to decide the issue raised
Neither herein Private Respondents nor INTERVENOR, is a party in the exclusion
including the questions of citizenship and residence of the challenged voter, the authority to
proceedings. The Petition for Exclusion was filed by DOMINDO himself and his wife, praying
order the inclusion in or exclusion from the list of voters necessarily caries with it the power to
that he and his wife be excluded from the Voter's List on the ground of erroneous registration
inquire into and settle all matters essential to the exercise of said authority. However, except
while the Petition to Deny Due Course to or Cancel Certificate of Candidacy was filed by
for the right to remain in the list of voters or for being excluded therefrom for the particular
private respondents against DOMINO for alleged false representation in his certificate of
election in relation to which the proceedings had been held, a decision in an exclusion or
candidacy. For the decision to be a basis for the dismissal by reason of  res judicata, it is
inclusion proceeding, even if final and unappealable, does not acquire the nature of res
essential that there must be between the first and the second action identity of parties, identity
judicata.  In this sense, it does not operate as a bar to any future action that a party may take
13

of subject matter and identity of causes of action.  In the present case, the aforesaid essential
19

concerning the subject passed upon in the proceeding.  Thus, a decision in an exclusion
14

requisites are not present. In the case of Nuval v. Guray, et al.,   the Supreme Court in
20

proceeding would neither be conclusive on the voter's political status, nor bar subsequent
resolving a similar issue ruled that:
proceedings on his right to be registered as a voter in any other election. 15
The question to be solved under the first assignment of error is whether or not In order that res judicata may exist the following are necessary: (a) identity of
the judgment rendered in the case of the petition for the exclusion of Norberto parties; (b) identity of things; and (c) identity of issues (Aquino v. Director of
Guray's name from the election list of Luna, is res judicata, so as to prevent the Lands, 39 Phil. 850). And as in the case of the petition for excluision and in the
institution and prosecution of an action in quo warranto, which is now before present quo warranto proceeding, as there is no identity of parties, or of things
us. or litigious matter, or of issues or causes of action, there is no res judicata.

The procedure prescribed by section 437 of the Administrative Code, as The Second Issue.
amended by Act No. 3387, is of a summary character and the judgment
rendered therein is not appealable except when the petition is tried before the Was DOMINO a resident of the Province of Sarangani for at least one year immediately
justice of the peace of the capital or the circuit judge, in which case it may be preceding the 11 May 1998 election as stated in his certificate of candidacy?
appealed to the judge of first instance, with whom said two lower judges have
concurrent jurisdiction. We hold in the negative.

The petition for exclusion was presented by Gregorio Nuval in his dual capacity It is doctrinally settled that the term "residence," as used in the law prescribing the
as qualified voter of the municipality of Luna, and as a duly registered qualifications for suffrage and for elective office, means the same thing as "domicile," which
candidate for the office of president of said municipality, against Norberto imports not only an intention to reside in a fixed place but also personal presence in that place,
Guray as a registered voter in the election list of said municipality. The present coupled with conduct indicative of such intention.  "Domicile" denotes a fixed permanent
21

proceeding of quo warranto was interposed by Gregorio Nuval in his capacity residence to which, whenever absent for business, pleasure, or some other reasons, one
as a registered candidate voted for the office of municipal president of Luna, intends to return.  "Domicile" is a question of intention and circumstances. In the consideration
22

against Norberto Guray, as an elected candidate for the same office. of circumstances, three rules must be borne in mind, namely: (1) that a man must have a
Therefore, there is no identity of parties in the two cases, since it is not enough residence or domicile somewhere; (2) when once established it remains until a new one is
that there be an identity of persons, but there must be an identity of capacities acquired; and (3) a man can have but one residence or domicile at a time. 23

in which said persons litigate. (Art. 1259 of the Civil Code; Bowler vs. Estate of
Alvarez, 23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165)
Records show that petitioner's domicile of origin was Candon, Ilocos
Sur   and that sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St.
24

In said case of the petition for the exclusion, the object of the litigation, or the Ayala Heights, Old Balara, Quezon City, as shown by his certificate of candidacy for the
litigious matter was the exclusion of Norberto Guray as a voter from the position of representative of the 3rd District of Quezon City in the May 1995 election. Petitioner
election list of the municipality of Luna, while in the is now claiming that he had effectively abandoned his "residence" in Quezon City and has
present que warranto proceeding, the object of the litigation, or the litigious established a new "domicile" of choice at the Province of Sarangani.
matter is his exclusion or expulsion from the office to which he has been
elected. Neither does there exist, then, any identity in the object of the
A person's "domicile" once established is considered to continue and will not be deemed lost
litigation, or the litigious matter.
until a new one is established.   To successfully effect a change of domicile one must
25

demonstrate an actual removal or an actual change of domicile; a bona fide intention of


In said case of the petition for exclusion, the cause of action was that Norberto abandoning the former place of residence and establishing a new one and definite acts which
Guray had not the six months' legal residence in the municipality of Luna to be correspond with the
a qualified voter thereof, while in the present proceeding of quo warranto, the purpose.   In other words, there must basically be animus manendi coupled with animus non
26

cause of action is that Norberto Guray has not the one year's legal residence revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
required for eligibility to the office of municipal president of Luna. Neither does period of time; the change of residence must be voluntary; and the residence at the place
there exist therefore, identity of causes of action. chosen for the new domicile must be actual. 27
It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since While, Domino's intention to establish residence in Sarangani can be gleaned from the fact
December 1996 was sufficiently established by the lease of a house and lot located therein in that be bought the house he was renting on November 4, 1997, that he sought cancellation of
January 1997 and by the affidavits and certifications under oath of the residents of that place his previous registration in Qezon City on 22 October 1997,  and that he applied for transfer of
34

that they have seen petitioner and his family residing in their locality. registration from Quezon City to Sarangani by reason of change of residence on 30 August
1997,  DOMINO still falls short of the one year residency requirement under the Constitution.
35

While this may be so, actual and physical is not in itself sufficient to show that from said date
he had transferred his residence in that place. To establish a new domicile of choice, personal In showing compliance with the residency requirement, both intent and actual presence in the
presence in the place must be coupled with conduct indicative of that intention. While district one intends to represent must satisfy the length of time prescribed by the fundamental
"residence" simply requires bodily presence in a given place, "domicile" requires not only such law.  Domino's failure to do so rendered him ineligible and his election to office null and void.
36 37

bodily presence in that place but also a declared and probable intent to make it one's fixed and
permanent place of abode, one's home. 28
The Third Issue.

As a general rule, the principal elements of domicile, physical presence in the locality involved DOMINO's contention that the COMELEC has no jurisdiction in the present petition is bereft of
and intention to adopt it as a domicile, must concur in order to establish a new domicile. No merit.
change of domicile will result if either of these elements is absent. Intention to acquire a
domicile without actual residence in the locality does not result in acquisition of domicile, nor As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the Omnibus Election
does the fact of physical presence without intention. 29
Code, has jurisdiction over a petition to deny due course to or cancel certificate of candidacy.
Such jurisdiction continues even after election, if for any reason no final judgment of
The lease contract entered into sometime in January 1997, does not adequately support a disqualification is rendered before the election, and the candidate facing disqualification is
change of domicile. The lease contract may be indicative of DOMINO's intention to reside in voted for and receives the highest number of votes  and provided further that the winning
38

Sarangani but it does not engender the kind of permanency required to prove abandonment of candidate has not been proclaimed or has taken his oath of office. 39

one's original domicile. The mere absence of individual from his permanent residence, no
matter how long, without the intention to abandon it does not result in loss or change of It has been repeatedly held in a number of cases, that the House of Representatives Electoral
domicile.   Thus the date of the contract of lease of a house and lot located in the province of
30
Tribunal's sole and exclusive jurisdiction over all contests relating to the election, returns and
Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as qualifications of members of Congress as provided under Section 17 of Article VI of the
the reckoning period of the one-year residence requirement. Constitution begins only after a candidate has become a member of the House of
Representatives.  40

Further, Domino's lack of intention to abandon his residence in Quezon City is further
strengthened by his act of registering as voter in one of the precincts in Quezon City. While The fact of obtaining the highest number of votes in an election does not automatically vest the
voting is not conclusive of residence, it does give rise to a strong presumption of residence position in the winning candidate.  A candidate must be proclaimed and must have taken his
41

especially in this case where DOMINO registered in his former barangay. Exercising the right oath of office before he can be considered a member of the House of Representatives.
of election franchise is a deliberate public assertion of the fact of residence, and is said to
have decided preponderance in a doubtful case upon the place the elector claims as, or
In the instant case, DOMINO was not proclaimed as Congressman-elect of the Lone
believes to be, his residence.  The fact that a party continously voted in a particular locality is
31

Congressional District of the Province of Sarangani by reason of a Supplemental Omnibus


a strong factor in assisting to determine the status of his domicile.
32

Resolution issued by the COMELEC on the day of the election ordering the suspension of
DOMINO's proclamation should he obtain the winning number of votes. This resolution was
His claim that his registration in Quezon City was erroneous and was caused by events over issued by the COMELEC in view of the non-finality of its 6 May 1998 resolution disqualifying
which he had no control cannot be sustained. The general registration of voters for purposes DOMINO as candidate for the position.
of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.: June 14, 15,
21, and 22. 33
Cosidering that DOMINO has not been proclaimed as Congressman-elect in the Lone to disenfranchise the electorate without any fault on their part and to undermine the
Congressional District of the Province of Sarangani he cannot be deemed a member of the importance and meaning of democracy and the people's right to elect officials of their choice. 51

House of Representatives. Hence, it is the COMELEC and not the Electoral Tribunal which
has jurisdiction over the issue of his ineligibility as a candidate.
42
INTERVENOR's plea that the votes cast in favor of DOMINO be considered stray votes cannot
be sustained. INTERVENOR's reliance on the opinion made in the Labo, Jr. case  to wit: if the
52

Issue raised by INTERVENOR. electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety, would nevertheless cast their votes in favor of the
After finding that DOMINO is disqualified as candidate for the position of representative of the ineligible candidate, the electorate may be said to have waived the validity and efficacy of their
province of Sarangani, may INTERVENOR, as the candidate who received the next highest votes by notoriously misapplying their franchise or throwing away their votes, in which case,
number of votes, be proclaimed as the winning candidate? the eligible candidate obtaining the next higher number of votes may be deemed elected, is
misplaced.
It is now settled doctrine that the candidate who obtains the second highest number of votes
may not be proclaimed winner in case the winning candidate is disqualified.  In every election,
43 Contrary to the claim of INTERVENOR, petitioner was not notoriously known by the public as
the people's choice is the paramount consideration and their expressed will must, at all times, an ineligible candidate. Although the resolution declaring him ineligible as candidate was
be given effect. When the majority speaks and elects into office a candidate by giving the rendered before the election, however, the same is not yet final and executory. In fact, it was
highest number of votes cast in the election for that office, no one can be declared elected in no less than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that allowed
his place. 44 DOMINO to be voted for the office and ordered that the votes cast for him be counted as the
Resolution declaring him ineligible has not yet attained finality. Thus the votes cast for
It would be extremely repugnant to the basic concept of the constitutionally guaranteed right to DOMINO are presumed to have been cast in the sincere belief that he was a qualified
suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed a candidate, without any intention to misapply their franchise. Thus, said votes can not be
winner and imposed as the representative of a constituency, the majority of which have treated as stray, void, or meaningless.53

positively declared through their ballots that they do not choose him.  To simplistically assume
45

that the second placer would have received the other votes would be to substitute our WHEREFORE, the instant petition is DISMISSED. The resolution dated 6 May 1998 of the
judgment for the mind of the voters. He could not be considered the first among qualified COMELEC 2nd Division and the decision dated 29 May 1998 of the COMELEC En Banc, are
candidates because in a field which excludes the qualified candidate, the conditions would hereby AFFIRMED. 1âwphi1.nêt

have substantially changed. 46

SO ORDERED.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election.
47

The effect of a decision declaring a person ineligible to hold an office is only that the election
fails entirely, that the wreath of victory cannot be transferred  from the disqualified winner to
48

the repudiated loser because the law then as now only authorizes a declaration of election in
favor of the person who has obtained a plurality of votes  and does not entitle the candidate
49

receiving the next highest number of votes to be declared elected. In such case, the electors
have failed to make a choice and the election is a nullity.  To allow the defeated and
50

repudiated candidate to take over the elective position despite his rejection by the electorate is
This is a complaint filed by Datu Inocencio Siawan against Judge Aquilino. A. Inopiquez, Jr. of
the Municipal Circuit Trial Court, Kananga-Matag-ob, Leyte, for gross ignorance of the law,
gross abuse of power, and misconduct in connection with the latter's handling of a criminal
case and two election cases for inclusion of voters. Originally, two identical complaints against
respondent were filed. The first was referred to this Court by the Department of Justice, the
National Bureau of Investigation, the Commission on Elections, and the Government Service
Insurance System, while the second one, O.C.A. I.P.I. No. 95-54-MTJ, was referred to this
Court by the Office of the President.

O.C.A. I.P.I. No. 95-54-MTJ was dismissed by the First Division on October 25, 1995, 1 On the
other hand, O.C.A. I.P.I. No. 95-25-MTJ was redocketed as Administrative Matter No. MTJ-95-
1056 and referred by the Second Division to Acting Executive Judge Fortunato 2 L. Madrona of
the Regional Trial Court of Ormoc City, Leyte, for investigation, report, and recommendation
on October 16, 1996.3

On September 15, 1997, Investigating Judge Fortunito L. Madrona submitted his report. 4 With
respect to Criminal Case No. 584, entitled "People of the Philippines v. Julia Enriqua Seco,"
the Investigating Judge found the following facts:

(1) In Crim. Case No. 584 entitled People of the Philippines vs. Julia Enriqua Seco . . .,
the accused then was charged of Usurpation of Authority and Official Functions under
Art. 177 of the Revised Penal Code, involving, as the complaint states, a "paquiao"
contract in which the accused Julia Seco allegedly signed as the Barangay Captain of
Brgy. Cansuso, Matag-ob, Leyte;

(2) In the course of the proceedings after the prosecution had already presented its
witnesses, the complaint was dismissed on the basis of an Affidavit of Desistance
executed by complainant Restituto C. Pedrano which was prepared and executed
before Provincial Prosecutor Rosario D. Beleta on June 4, 1992 (Exh. "R"). This
Affidavit of Desistance is opposite to the earlier affidavit of the same complainant
dated March 17, 1997 ... which was made the basis of the Complaint;
A.M. No. MTJ-95-1056       May 21, 2001 (3) On the basis of the Affidavit of Desistance the respondent issued the Order dated
December 22, 1992 dismissing the case (Exh. "S");
DATU INOCENCIO C. SIAWAN, complainant,
vs. (4) Prior to the issuance of the Affidavit of Desistance that is on May 20, 1987,
JUDGE AQUILINO A. INOPIQUEZ, JR., respondent. accused Julia Enriqua Seco had filed before the Municipal Circuit Trial Court a Motion
for Inhibition of the Presiding Judge now respondent in this case (Exh. "Q"). The meat
MENDOZA, J.: of this motion for inhibition is that the father-in-law of the Presiding Judge, herein
respondent, was conspicuously present in the proceedings during which time he gave
consultation to the complainant who was reportedly his political leader and protegee. (12) Obviously because of the statement in respondent's Order of March 29, 1994 (see
The accused herself signed the motion with "conforme" of a certain Atty. Camilo last sentence, first paragraph, page 2 thereof) herein quoted as follows:
Superable acting as counsel;
If ever the private complainant wants to [revive], the case he should refile the
(5) The Motion for Inhibition was denied by the Presiding Judge, herein respondent; case [anew]. Anyway the crime has not yet [prescribed] and double jeopardy
will not come in for the accused in the instant case had not been [arraigned].
(6) The accused after the dismissal of the case sued Restituto C. Pedrano in a
separate civil action for damages (docketed as Civil Case No. 3167-0 before the RTC, a complaint denominated as Criminal Case No. 1181 (Exh. "Y") was filed by the same
Ormoc City and now elevated to the Court of Appeals as CA-G.R. CV No. 51495), as a complainant, Restituto Pedrano, before the same Municipal Circuit Trial Court of
result of which the latter, through an Omnibus Motion (Exh. "T") dated November 4, Kananga-Matag-ob, Leyte of respondent judge against the same accused and
1993 or about a year after the dismissal of Criminal Case No. 584, filed by Atty. involving the same offense.
Eusebio Otadoy, Jr. who acted as counsel and private prosecutor, wanted to revive the
case against accused Julia Enriqua Seco; (13) The complaint in Criminal Case No. 1181 (Exh. "Y") in substance, is the same as
the complaint in Criminal Case No. 584 (Exh. "O") . . . All supporting affidavits except
(7) Then accused Seco herself filed Opposition to Omnibus Motion dated November the complaint affidavit of Pedrano, were all reproduced from the previous complaint in
26, 1993 (Exh. "U") stating, among others, the grounds that (a) the lower court has no Criminal Case No. 584 (TSN of June 16, 1997, pp. 28-29);
more jurisdiction as the assailed order was long final and (b) the motion was only
signed by the private prosecutor with no authority from the public prosecutor to file (14) The new complaint re Criminal Case No. 1181 was filed April 21, 1994 (supra, p.
such kind of pleading; 30). About a week later, or on April 28, 1994, respondent Judge issued the Order . . .
inhibiting himself from trying the case (Exh. "6") on the ground that "the counsel for the
(8) Respondent as Presiding Judge issued the Order dated January 20, 1994 (Exh. offended party is related to the Presiding Judge";
"V") ordering the withdrawal from the records of the affidavit of Restituto Pedrano
dated June 4, 1992 (the desistance) and recalling the Order of the Court dated (15) The Order of inhibition, however, was denied by the Regional Trial Court, Ormoc
December 22, 1992 (which is for dismissal) and reinstating the case in the court's City in an Order dated September 1, 1994 (Exh. "7") and soon thereafter, respondent
calendar; judge in an Order dated September 5, 1994 dismissed Criminal Case No. 1181. The
principal reason given for the dismissal is the admission by respondent that the case
(9) Because of the reinstatement, the accused through her daughter, Mrs. Lilia "had been filed by the offended party without however the intervention of the public
Tordillo, requested the fixing of the bail bond, which in the Order of the Court dated prosecutor or the station commander. The crime of Usurpation of Authority and Official
February 24, 1994 (Exh. "W") was fixed at P4,000.00; Function is a public offense and the offended party is the People of the Philippines. It
appears that the instant case has been instituted not by the proper party." (Exh. "VV"
(10) The Order of respondent (Exh. "W") shows a warrant of arrest must have been and Exh. "9").
issued against complainant, then accused Seco in connection with Criminal Case No.
584. This was testified to by her during the hearing (TSN of April 29, 1997, pp. 56-57) (16) A Motion For Reconsideration re the Order of dismissal was filed by the private
although respondent through counsel stated that the record of the case is "bereft of complainant to which the respondent judge directed accused's counsel, to file
warrant of arrest" (Ibid, p. 65); comment to the motion despite the fact she was not yet arrested or that the Court had
not yet acquired jurisdiction over her body (TSN, supra, p. 34 et seq. Cf. P. 37);
(11) Respondent reconsidered the previous Order by issuing the Order dated March
29, 1994 (Exh. "X"). In this latter Order, he voluntarily inhibited himself from further (17) The respondent judge issued the Order of November 14, 1994 (Exh. "8") denying
taking cognizance of the case for reasons of delicadeza; the motion for reconsideration;
(18) A second motion for reconsideration was again filed by the private complainant Complainant's counsel in Criminal Case No. 584 was Atty. Eusebio Otadoy, Jr. 9 Respondent
and the respondent in an Order dated December 23, 1994 (Exh. "SS") directed anew admits that he is related to Atty. Otadoy whose maternal surname is in fact Inopiquez, but
the accused's counsel for another comment; respondent claims he could not trace who among their forefathers were related. He claims that
he and counsel are not even second cousins.10
(19) Atty. Custodio Cañete complied and filed his comment dated December 26, 1994
and a supplemental comment dated February 6, 1995 (Exh. "TT") stating among Although respondent is not related within the fourth degree of consanguinity or affinity to Atty
others that the counsel is not the lawyer representing the then accused (herein Otadoy, the evidence shows that because of his relationship not only to Atty Otadoy but also
complainant) in Criminal Case No. 1181 whom the Court had not yet acquired to those helping the complainant, Restituto Pedrano, one of whom, Guillermo Laurente, is
jurisdiction in the first place; respondent's father-in-law, while the other one, Atty. Felix Sun, is his brother-in-law,
respondent judge acted with obvious partiality for complainant in the criminal case. It must be
(20) Criminal Case No. 1181 was finally laid to rest on February 17, 1995 as per recalled that the accused Julia Enriqua Seco, who was charged on March 19, 1987 with
admission of complainant (TSN, April 29, 1997, pp. 57-58). 5 usurpation of authority and official functions, moved on May 20, 1987 for the disqualification of
respondent on the ground that Atty. Sun, respondent's brother-in-law, was actively
As regards the election cases decided by respondent, the Investigating Judge found the participating in the prosecution of the case, while Guillermo Laurente, respondent's father-in-
following: law, was often present during the trial because the complainant therein, Restituto Pedrano,
was his political protégée.11
(1) Respondent is the Presiding Judge of the Municipal Circuit Trial Court of Kananga-
Matag-ob, Leyte, residing in Brgy. Riverside, Matag-ob, Leyte (TSN of June 3, 1997, p. Without addressing the issues raised by accused Seco, respondent denied her motion for
19). inhibition in his order, dated May 22, 1987, on the pretext that the motion was filed with the
assistance of Atty. Camilo A. Superable, who was then not the counsel of record of accused
Seco.12 Apparently realizing that the motion for disqualification was meritorious, respondent,
(2) Respondent has had relatives who ran for public office while he assumed as such
after partially hearing the case, dismissed it on the basis of an affidavit of desistance of the
presiding judge. His brother-in-law Edgardo Laurente ran for Mayor during the January
complainant, Restituto Pedrano. But, as Seco sued Pedrano for damages for filing the criminal
18, 1988 elections but lost to complainant Michael L. Torrevillas (TSN of April 15,
case, respondent judge ordered the withdrawal of Pedrano's affidavit of desistance from the
1997, pp. 63-64). His son, Van Russel, ran for SK Chairman of Brgy. Riverside and
record and recalled his order dismissing the criminal case. Respondent then revived Criminal
won on the December 4, 1992 election. His daughter, Cheri May, also ran for the
Case No. 584 only to dismiss it again, saying the complainant in the criminal case could
position of Chairman of the Sangguniang Kabataan of Brgy. Riverside on May
always refile it. He then inhibited himself on the ground of delicadeza citing his relationship to
complainant. The fact thus stands out that there was no such petition for inhibition filed
counsel for the private prosecutor. 13 When Criminal Case No. 1181 was filed against accused
against the respondent in the inclusion and exclusion cases filed in the latter's sala. 6
Seco, based on the same facts as Criminal Case No. 584, respondent, to whom the case was
again assigned, issued an order, dated April 28, 1994, inhibiting himself, reiterating that he is
On the basis of these facts, Judge Madrona found respondent guilty of grave abuse of official related to the private prosecutor.14
functions and/or oppression and recommended that he be fined the sum of P15,000.00 and/or
suspended for a period of six months. 7 On March 15, 1999, the Office of the Court
Thus, respondent could have recused himself from the moment his disqualification was sought
Administrator submitted its report likewise finding that respondent judge mishandled Criminal
by the accused Julia Enriqua Seco in Criminal Case No. 594. Apparently, he later realized it
Case No. 584 and recommended that respondent judge be fined P15,000.00, with warning
was untenable for him to continue hearing the criminal case not only because of his
that repetition of the same or similar offense in the future will be dealt with more severely. 8
relationship to Atty. Otadoy but also to Atty. Felix Sun and Edgardo Laurente, both of whom
were his brothers-in-law,15 who were actively participating in the prosecution of the criminal
We find both recommendations to be well taken. case. Respondent hung on to the case as long as he could until this case was filed against
him. It is noteworthy that the order of respondent finally inhibiting himself from trying Criminal
Re Criminal Case No. 584 Case No. 584was issued only on March 29, 1994, after the herein letter-complaint of Datu
Siawan, dated March 24, 1994, had already been prepared and drafted. Indeed, it is too much
of a coincidence that respondent judge's decision to recuse himself in Criminal Case No. 584 It may also be added that a well-meaning judge may not just order the reopening of an
and Criminal Case No. 1181 came only after the filing of this case against him. already dismissed criminal case or direct the removal of a vital evidence on record
without first going over the record of the case. But, a judge whose mind is set to favor
Indeed, although the disqualification of judges is limited only to cases where the judge is a party-litigant may literally turn a blind eye to the proceedings which already
related to counsel within the fourth degree of consanguinity or affinity, the Rules nonetheless transpired and the applicable law and jurisprudence on the case before him.
provide that a judge may, in the exercise of his discretion, disqualify himself from sitting in a
case for other just and valid reasons. 16 A judge should not handle a case where he might be We are referring to the irregular actuations of respondent in the same Crim. Case No.
perceived, rightly or wrongly, to be susceptible to bias and impartiality, which axiom is 584 wherein he granted the motion of the private prosecutor to withdraw or detach the
intended to preserve and promote public confidence in the integrity and respect for the Affidavit of Desistance executed by the private complainant 1) without the approval of
judiciary.17 In this case, the refusal of respondent to inhibit himself from the conduct of the case the private prosecutor; 2) despite the fact that the dismissal of the case was already
and his doing so only after being threatened with an administrative case could not but create final; and 3) stating in the order that the accused was not yet arraigned, when the truth
the impression that he had ulterior motives in wanting to try the case. is the prosecution has already rested when the case was dismissed on December 22,
1992. It cannot be said that respondent overlooked these facts because the accused
Indeed, it was even error for him to dismiss Criminal Case No. 584 on the basis of the affidavit filed a timely opposition to the motion.
of desistance of Restituto Pedrano without determining whether the affidavit was voluntarily
executed. Then, as already stated, because Seco sued Pedrano for damages, respondent Respondent's apparent irregular actuations were calculated to give the private
reinstated the criminal case based on the latter's omnibus motion even if it had already been complainant a leverage in the civil action for damages filed by the accused Seco
almost a year after he had dismissed it, because allegedly such would not anyway constitute before the Regional Trial Court – on the basis of the affidavit of desistance executed
double jeopardy as the accused Seco had not yet been arraigned. However, respondent by the private complainant.
admits that when he dismissed the case, the prosecution had already presented its
evidence.18 This means that the accused Seco had been already arraigned at the time the Respondent's deliberate mishandling of the case erodes the people's faith in the
case against her was dismissed, so that its refiling subsequently placed her in jeopardy of judiciary. There being nothing on record showing that complainant was deprived of her
being twice punished for the same offense. liberty as a consequence of respondent's indiscretions, a fine imposed upon him may
be appropriate under the premises.19
It is obvious that respondent got entangled in his own maneuverings in his desire to favor and
protect the complainant Restituto Pedrano and those helping the latter. As the Court Re Election Case Nos. 333 and 292
Administrator well observed in his memorandum to the Court:
The first case was a petition for inclusion of a voter in the voter's list. Respondent judge admits
Indeed, respondent's bias towards the private complainant showed when he allowed that the petitioner, retired Judge Ponciano C. Inopiquez, Sr., is his uncle. 20 Nonetheless, he
his father-in-law to advise the private complainant, who is said to be his political leader justifies his failure to recuse himself on the ground that the petition of Ponciano C. Inopiquez,
during the proceedings held in Crim. Case No. 584. It must have been disconcerting Sr. was meritorious. Respondent claims that a hearing was conducted on February 28, 1992
on the part of the accused to see the private complainant openly consulting the father- during which Ponciano C. Inopiquez, Sr. testified to prove that he was a resident of Brgy.
in-law of the person sitting in judgment of his case. Talisay, Matag-ob, Leyte.21

To maintain the appearance of impartiality in his court, at the first instance, respondent Respondent judge's contention is without merit. Rule 137, §1 of the Rules of Court provides:
should have stopped his father-in-law from meddling in the proceedings. If he did not
want to offend or displease him, he should have outrightly inhibited himself from further No judge or judicial officer shall sit in any case in which he, or his wife or child, is
trying the case. However, he even denied the motion for inhibition filed by the accused. pecuniarily interested as heir, legatee, creditor or otherwise, or in which he is related to
either party within the sixth degree of consanguinity or affinity, or to counsel within the
fourth degree, computed according to the rules of civil law, or in which he has been
executor, administrator, guardian, trustee or counsel, or in which he has presided in they had been residents of Barangay San Sebastian, Matag-ob, Leyte for two years at the time
any inferior court when his ruling or decision is the subject of review, without the of the petition; that they were refused registration on February 1, 1992 at Brgy. San Sebastian,
written consent of all parties in interest, signed by them and entered upon the record. Matag-ob, Leyte by the Board of Election Inspectors; and that they have not voted for two
consecutive elections.24
A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a
case, for just or valid reasons other than those mentioned above. The Omnibus Election Code (B.P. Blg. 881), as amended by P.D. No. 1896, provides,
however, that:
Similarly, Rule 3.12 of the Code of Judicial Conduct provides:
Sec. 139. Petition for inclusion of voters in the list. – Any person whose application for
A judge should take no part in a proceeding where the judge's impartiality might registration has been disapproved by the board of election inspectors or whose name
reasonably be questioned. These cases include, among others, proceedings where: has been stricken out from the list may apply, within twenty days after the last
registration days, to the proper municipal or metropolitan trial court, for an order
.... directing the board of election inspectors to include or reinstate his name in the list,
together with the certificate of the board of elections inspectors regarding his case and
proof of service of notice of his petition upon a member of the board of election
(d) the judge is related by consanguinity or affinity to a party litigant within the sixth
inspectors with indication of the time, place, and court before which the petition is to be
degree or to counsel within the fourth degree;
heard.
....
Thus, under the law, a petition for inclusion may be filed only by a person (a) whose
application for registration has been disapproved by the board of election inspectors or (b)
In every instance the judge shall indicate the legal reason for inhibition. whose name has been stricken out from the list of voters. No exception is provided by the law.
The petition of former Judge Ponciano C. Inopiquez does not fall within the coverage of the
Under these provisions, respondent judge was disqualified from hearing the petition of his law, since he was neither refused registration by the board nor his name ordered stricken from
uncle and it was immaterial that the petition was meritorious. The purpose of the prohibition is the list of voters of Barangay Talisay, Matag-ob, Leyte. Whether or not Ponciano Inopiquez
to prevent not only a conflict of interest but also the appearance of impropriety on the part of a had good reason for his failure to register as a voter was irrelevant. Otherwise, every person
judge. A judge should take no part in a proceeding where his impartiality might reasonably be who is unable to register for whatever reason, i.e., he or she was working in another province
questioned and he should administer justice impartially and without delay. 22 The failure of or was out of the country during the registration period, could simply file a petition for inclusion
respondent judge to inhibit himself constitutes an abuse of his authority and undermines public in order to be able to vote.
confidence in the impartiality of judges.
The Omnibus Election Code further provides:
Nor is it true respondent decided the election cases solely on the basis of their merits. The
records show that he disregarded the provisions of the Omnibus Election Code (B.P. Blg. Section 143. Common rules governing judicial proceedings in the matter of inclusion,
881). exclusion, and correction of names of voters. --- (a) Outside of regular office hours, no
petition for inclusion, exclusion, or correction of names of voters shall be received.
In Election Case No. 333, the petitioner, respondent's uncle, Ponciano C. Inopiquez, alleged
that he was a resident of Barangay. Talisay, Matag-ob, Leyte; that he had the qualifications of (b) Notices to the members of the board of election inspectors and to challenged
a voter and none of the disqualifications; that he had not voted for two consecutive elections in voters shall state the place, day and hour in which such petition shall be heard, and
Metro Manila; that he was unable to register in Barangay Talisay, Matag-ob, Leyte, because such notice may be made by sending a copy thereof by registered mail or by personal
he could not book a plane for Leyte on that day; and that it was his intention to vote in Leyte as delivery or by leaving it in the possession of a person of sufficient discretion in the
he was already retired as judge of the Regional Trial Court, Branch 4, of Manila. 23 In Election residence of the said person or, in the event that the foregoing procedure is not
Case No. 292, on the other hand, the seven petitioners, all surnamed Herbas, alleged that
practicable, by posting a copy in a conspicuous place in the city hall or municipal In Villaluz v. Mijares,27 a judge was fined P10,000.00 for trying and deciding the petition for
building and in two other conspicuous places within the city or municipality, at least ten correction of entry filed by her grandson. On the other hand, in the case
days prior to the day set for the hearing. of Pacris v. Pagalilauan,28 the respondent judge therein was found guilt of gross ignorance of
the law for having violated or failed to apply relevant provisions of the Omnibus Election Code
(c) Each petition shall refer to only one precinct. and was fined P10,000.00. In this case, however, respondent did not simply fail to recuse
himself from cases in which his relatives were either involved or interested, the record shows
(d) No costs shall be assessed in these proceedings. However, if the court should be he did so to favor or protect the parties. Considering that respondent was previously censured
satisfied that the application has been filed for the sole purpose of molesting the and warned by this Court for grave abuse of discretion and gross ignorance of the law, we
adverse party and causing him to incur expenses, it may condemn the culpable party hold that a fine of P20,000.00 and suspension for three (3) months without pay would be an
to pay the costs and incidental expenses. appropriate penalty in view of respondent's violation of Rule 137 of the Rules of Court and his
abuse of authority.29
(e) Any candidate who may be affected by the proceedings may intervene and present
his evidence. WHEREFORE, respondent Judge Aquilino A. Inopiquez, Jr. is hereby ORDERED to pay a fine
of P20,000.00 for violation of Rule 137 of the Rules of Court and is SUSPENDED without pay
for a period of three months for abuse of authority and ignorance of the law.
(f) The decision shall be based on the evidence presented. If the question is whether
1âwphi1.nêt

or not the voter is real or fictitious, his non-appearance on the day set for hearing shall
be prima facie evidence that the registered voter is fictitious. In no case shall a SO ORDERED.
decision be rendered upon a stipulation of facts.

(g) These applications shall be heard and decided without delay. The decision shall be
rendered within six hours after the hearing and within ten days from the date of its filing
in court. Cases appealed to the regional trial court shall be decided within ten days
from receipt of the appeal in the office of the clerk of court. In any case, the court shall
decide these petitions not later than the day before the election and the decision
rendered thereon shall be immediately final and executory, notwithstanding the
provision of Section 138 on the finality of decisions.

The records show that neither of the petition in Election Case No. 333 25 and Election Case No.
29226 named the board of election inspectors a party to the proceedings. Nor is there any
showing that the board of election inspectors was ever notified of hearings to be conducted on
such inclusion proceedings either by registered mail or by personal delivery, or by notice
posted in a conspicuous place in the city hall or municipal building and in two other
conspicuous places within the city or municipality at least 10 days prior to the day set for the
hearing as required in paragraph (b) of the above provision.

The failure of respondent to observe the requirements of the Election Code is inexcusable. As
a judge of the Municipal Circuit Trial Court vested with the jurisdiction to hear and decide
petitions for inclusion or exclusion of voters, he is expected to be familiar with these
requirements because it can be assumed that these election cases were not the first cases he
has decided.
BUENA, J.:

Way back in the 1950's and during the martial law era, it has been said that even the dead, the
birds and the bees voted in Lanao. This petition for certiorari under Rule 65 of the Rules of
Court which seeks to nullify the Order issued by the Commission on Elections [COMELEC, for
brevity] dated June 29, 1998, finding Padian Torogan in Madalum, Lanao Del Sur as "ghost
precinct," is an illustrative case.

The facts are as follows:

On September 15, 1997, a petition for annulment of several precincts and annulment of book
of voters in Madalum, Lanao Del Sur was filed with the COMELEC by, among others, Hadji
Oblais R. Omar thru counsel Atty. Nasib D. Yasin, herein private respondents. Among the
precincts sought to be annulled was Padian Torogan, subject matter of the present petition
for certiorari. 1

On September 18, 1997, the COMELEC, thru the Clerk of the Commission sent telegrams to
the respective Board of Election Inspectors (BEI) of the questioned precincts in Madalum,
Lanao Del Sur, including Padian Torogan, to file their answer to the petition for abolition of
precincts and annulment of book of voters. 2

On October 31, 1997, the incumbent mayor of Madalum, Lanao Del Sur, Usman T. Sarangani,
herein petitioner, together with other oppositors who were allegedly barangay chairmen of the
twenty three (23) barangays the "Books of Voters" and precincts of which were sought to be
annulled and abolished, respectively, filed an "Answer in Opposition" which included the

affidavits of the barangay chairmen of the affected precincts attesting to the fact that the move
to annul the book of voters and abolish the questioned election precincts were for the purpose
of diminishing the bailiwicks of the incumbent mayor of Madalum, Lanao del Sur.  4

After hearing and submission of formal offer of exhibits and memoranda by the parties, the
COMELEC issued an Order  dated February 11, 1998, referring the case to its Law

Department for appropriate investigation. The COMELEC Law Department conformably issued
a memorandum dated April 29, 1998 directing Atty. Muslemin Tahir, the Provincial Election
Supervisor of Marawi City, Lanao del Sur "to conduct a rigorous incisive investigation on the
G.R. No. 135927              June 26, 2000 alleged ghost precincts and thereafter submit a report on the investigation
conducted." Consequently, Atty. Tahir created a TASK FORCE INVESTIGATION TEAM by

SULTAN USMAN SARANGANI, SORAIDA M. SARANGANI and HADJI NOR virtue of a memorandum dated June 13, 1998 directing Election Officers Casan Macadato,
HASSAN, petitioners, Sacrain Guro and Anuar Datudacula "to conduct ocular inspection on the alleged twelve (12)
vs. ghost barangays in the Municipality of Madalum, Lanao Del Sur."  7

COMMISSION ON ELECTIONS and HADJI ABOLAIS R. OMAR, MANAN OSOP and ATTY.
NASIB D. YASSIN, respondents.
On June 18, 1998, an ocular inspection was conducted on the alleged ghost precincts yielding Moving camera film and several pictures are added hereto for further information and
the following results — as exhibits. Also attached hereof are the names and signatures of among the more-or-
less one hundred people who observed the conduct of this ocular inspection.
At 12:10 pm, the Task Force Investigation Team from the COMELEC accompanied by
traditional leaders, political leaders, many concerned residents of this town, a (NOTE: This writer, Mr. Khalil Y. Alawi, is a member of the five (5) man Committee
representative from the Lanao del Sur Provincial Statistics Office, Mr. Lacson from the DILG-ARMM, Lanao del Sur created in respect to the Memo/Invitation from
Abdullah, and a Team from the DILG-ARMM, Lanao del Sur, arrived in the area the COMELEC Provincial Office of Lanao del Sur dated June 15, 1998 signed by Mr.
supposedly Barangay Padian Torogan with these comments and observations: CASAN MACADATO, EO II, Chief Investigation Team. Mr. Macadato designated
verbally and in public Mr. ALAWI to be his Secretary during this investigation, and of
It appears that in this area there are only two structures: One is a concrete house with course, the (sic) with the consent of the DILG Team). 1âwphi1.nêt

no roof, and the other is a wooden structure without walls and roof. This obviously
mean that no single human being could possibly reside in these two structures. I hereby certify that the foregoing are true and correct to the best of my knowledge.

Also, it came out that the name Padian-Torogan means a cemetery not a residential Prepared by: (sgd) Khalil Y. Alawi
place. So this contradicts the records being brought by the COMELEC Team from the
Census saying that the area has 45 households with a total population of 285. (Ref. Member, DILG Team
Municipal census Report as of September 1, 1995).
Submitted by: (sgd) Casan Macadato
Besides, no less than the Chairman of the COMELEC Investigating Team asked the
people around who among them is a resident or a registered voter in the so-called Election Officer II
Barangay Padian-Torogan, and no one answered affirmatively.
Chairman, Task Force Investigation Team 8

Then at 12:50 PM, the COMELEC Investigating Team still with the people mentioned
above are in Barangay Lumbac to look for the other supposed Barangay named
On the basis of the foregoing, Election Officer Casan Macadato submitted to the Provincial
Rakutan, and found this observations.
Election Supervisor of COMELEC in Marawi City its 1st Indorsement dated June 19, 1998
reporting the results of the ocular inspection that Padian Torogan and Rakutan were
x x x           x x x          x x x uninhabited.
9

By the way, unfortunately, at the peak of this ocular inspection, the Madalum Municipal On June 29, 1998, the COMELEC issued the assailed Order finding "Padian Torogan as ghost
Chief of Police Mahdi Mindalano, armed with UZI pistolized Machine Gun, arrived at precinct." The dispositive portion of the COMELEC Order reads:
the scene at exactly 12:55 pm boarding an orange Mitsubishi car with four armed
bodyguards, the (sic) confronted the Team Leader of the COMELEC Investigating
ACCORDINGLY, the Commission En Banc:
Group and angrily insisted to stop the ocular inspection.
(1) resolves to GRANT the request and hereby:
This STACOM Mindalano, in warning a photographer not to take a shot on him,
pointed his pistolized Rifle to this man when the photographer positioned his camera to
take a picture of him while he is arguing with the investigating leader, Mr. CASAN (a) DIRECTS the Task Force Investigating Team created pursuant to
MACADATO. the Order of the Commission en banc dated February 11, 1998, to
continue the conduct of ocular inspection and investigation as
contained in the original directive of the Law Department dated April In a resolution  issued by this Court on January 19, 1999, we denied the motion to
11 

29, 1998; consolidate, considering that G.R. No. 134456 had already been dismissed in our resolutions
of August 4, 1998 and August 18, 1998.
(b) RECOMMENDS to the PNP Director and the Regional Director of
the Philippine National police, (1) to immediately relieve and transfer The basic issue to be resolved in this petition is whether or not the respondent COMELEC
Chief of Police Mahdi Mindalano of Madalum, Lanao del Sur and committed grave abuse of discretion in declaring Padian-Torogan as ghost precinct.  12

transfer him to an area where it will be extremely difficult for him to


return to Mandalum and do further damage to effort of the Commission On a preliminary matter, though not clear, it appears from the records that Padian Torogan is a
to investigate ghost precincts in said area considering the urgency of barangay in Madalum, Lanao del Sur and it was erroneous for the COMELEC to consider
said investigation. (2) to look into the possibility of involvement of other Padian-Torogan as a ghost precinct. In any case, the court is not tasked to determine whether
policement (sic) in Madalum in the aforestated criminal mischief of the the so-called Padian Torogan is a barangay or a mere election. The petition states that
Police Station Commander or their possible partisanship. precinct No. 27A located in Barangay Padian Torogan was the one declared as a ghost
precinct by the COMELEC although the assailed Order did not mention any specific precinct
(c) RECOMMENDS to AFP Regional Command, Armed Forces of the but simply declared "Padian Torogan as ghost precinct." To be clear, what was necessarily
Philippines, to immediately assign sufficient number of men to maintain contemplated by the assailed Order would be the election precinct in the said place.
peace and order in the Municipality of Madalum, Lanao del Sur, and to
escort and secure the safety of the COMELEC Investigating Team It must be noted that under the Omnibus Election Code, there should be at least one precinct
during the conduct of ocular inspections and investigations. per barangay. 1 In designating election precincts, the COMELEC usually refers to them by
number. Nevertheless, the determination of whether a certain election precinct actually exists
(2) finds Padain Togoran as ghost precinct and shall be excluded from the or not and whether the voters registered in said precinct are real voters is a factual matter. On
special election to be conducted in Madalum. such issue, it is a time-honored precept that factual findings of the COMELEC based on its
own assessments and duly supported by evidence, are conclusive upon this Court, more so, in
(3) Order the Investigating Team, thru Madatu, to immediately resume the the absence of a substantiated attack on the validity of the same.  Upon review of the records,
14 

investigation, the remaining ghost precincts in Madalum and to submit its the Court finds that the COMELEC had exerted efforts to investigate the facts and verified that
findings to the Commission with dispatch, allowing it to submit partial findings if there were no public or private buildings in the said place, hence its conclusion that there were
necessary. no inhabitants. If there were no inhabitants, a fortiori, there can be no registered voters, or the
registered voters may have left the place. It is not impossible for a certain barangay not to
The Law Department of this Commission is hereby directed to implement this order. actually have inhabitants considering that people migrate. A barangay may officially exist on
record and the fact that nobody resides in the place does not result in its automatic cessation
as a unit of local government. Under the Local Government Code of 1991, the abolition of a
SO ORDERED. (emphasis supplied)  10

local government unit (LGU) may be done by Congress in the case of a province, city,
municipality, or any other political subdivision.  In the case of a barangay, except in
15 

On November 3, 1998, Sultan Usman Sarangani, Soraida M. Sarangani and Hadji Nor Metropolitan Manila area and in cultural communities, it may be done by the Sangguniang
Hassan, in their respective capacity as former Municipal Mayor, incumbent Mayor and Vice- Panlalawigan or Sangguniang Panglunsod concerned subject to the mandatory requirement of
Mayor of Madalum filed the instant petition for certiorari and mandamus urging us to nullify the a plebiscite  conducted for the purpose in the political units affected.
16 

Order issued by the COMELEC, for having been issued with grave abuse of discretion.
1awphil

Likewise, petitioners moved to consolidate this case with G.R. No. 134456 entitled "Sultan
The findings of the administrative agency cannot be reversed on appeal
Sarangani, et. al vs. COMELEC, et. al" alleging that G.R. No. 134456 also involves a
or certiorari particularly when no significant facts and circumstances are shown to have been
COMELEC decision declaring the precinct corresponding to eight (8) barangays in Madalum,
overlooked or disregarded which when considered would have substantially affected the
Lanao del Sur as ghosts precincts.
outcome of the case. The COMELEC has broad powers to ascertain the true results of an
election by means available to it.  The assailed order having been issued pursuant to
17 
COMELEC's administrative powers and in the absence of any finding of grave abuse of vs.
discretion in declaring a precinct as non-existent, said order shall stand. Judicial interference is COMMISSION ON ELECTIONS (COMELEC), respondent.
unnecessary and uncalled for.  No voter is disenfranchised because no such voter exist. The
18 

sacred right of suffrage guaranteed by the Constitution  is not tampered when a list of fictitious
19 
RESOLUTION
voters is excluded from an electoral exercise. Suffrage is conferred by the Constitution only on
citizens who are qualified to vote and are not otherwise disqualified by law. On the contrary, TINGA, J.:
such exclusion of non-existent voters all the more protects the validity and credibility of the
electoral process as well as the right of suffrage because the "electoral will" would not be
For resolution is the Petition1 for certiorari and mandamus filed by Aklat-Asosasyon Para Sa
rendered nugatory by the inclusion of some ghost votes. Election laws should give effect to,
Kaunlaran Ng Lipunan At Adhikain Para Sa Tao, Inc. (Aklat) assailing the Commission on
rather than frustrate the will of the people. 
20

Elections (Comelec) Resolution2 dated January 8, 2004, which dismissed its Petition3 for re-


qualification as a party-list organization, and the Resolution4 dated February 13, 2004, which
WHEREFORE, the petition is hereby DISMISSED, and the assailed Order dated June 29, denied its Motion for Reconsideration.5
1998 of the Commission on Elections is UPHELD. No pronouncement as to costs. 1âwphi1.nêt

Briefly, the facts are as follows:


SO ORDERED.
On November 20, 2003, Aklat filed a Petition for declaration of re-qualification as a
party-list organization for purposes of the May 2004 elections. It alleged in its petition
that it participated in the 2001 elections but was disqualified by the Comelec as it was
found not to have complied with the guidelines set by the Court in the case of Ang
Bagong Bayani-OFW Labor Party v. Comelec (Bagong Bayani case)6 for party-list
organizations to qualify and participate as such in the party-list elections. Accordingly,
Aklat "re-organized itself in order that it will comply with the 8-point guidelines
enunciated by the Supreme Court"7 in the said case.

In its assailed Resolution dated January 8, 2004, the Comelec dismissed the petition stating
that Aklat cannot be considered as an organization representing the marginalized and
underrepresented groups as identified under Section 5 of Republic Act No. 7941 (R.A. 7941).
According to the Comelec, Aklat’s statement that it has re-organized itself does not cure this
defect as "there is nothing in the petition which will help us identify what particular
marginalized and underrepresented group AKLAT is now representing." 8 Further, the Comelec
held that "AKLAT lumped all the sectoral groups imaginable under the classification of regular
members just to convince us that it is now cured of its defect." 9

On January 15, 2004, Aklat filed a Motion for Reconsideration dated January 14, 2004,
substantially averring that it has reorganized itself and taken the necessary steps to make it an
organization of, by and for the marginalized and underrepresented groups of society,
G.R. No. 162203             April 14, 2004 particularly the indigenous cultural communities and the youth. To this end, it has allegedly
effected a fundamental change in its purposes as an organization, nature of its membership
AKLAT-ASOSASYON PARA SA KAUNLARAN NG LIPUNAN AT ADHIKAIN PARA SA and focus of its programs.10
TAO, INC., petitioner,
The Comelec denied the motion in its questioned Resolution dated February 13, 2004, on preparation and filing of the petition on its behalf. Moreover, Aklat was registered with the
three grounds, namely: the petition was filed beyond the deadline set by the Comelec in Securities and Exchange Commission only on October 20, 2003, a month before it filed its
Resolution No. 6320 for registration of party-list organizations; the petition was not one for re- petition for re-qualification. Hence, it has not existed for a period of at least one (1) year prior
qualification as Aklat was never a registered party-list organization having failed to meet the to the filing of the petition as required by Section 6 of Resolution No. 6320. The OSG also
eight-point guidelines set by the Court in the Bagong Bayani case; and that its decision not to points out that Aklat failed to support its petition with the documents required under Section 7
extend the deadline for registration of party-list organizations is valid, the Comelec being in the of Resolution No. 6320, namely: a list of its officers and members particularly showing that the
best position to make such a determination. 11 majority of its membership belongs to the marginalized and underrepresented sectors it seeks
to represent, and a track record or summary showing that it represents and seeks to uplift the
In the instant Petition, Aklat asserts that under Section 5 of R.A. 7941, petitions for registration marginalized and underrepresented sectors of society.
as a party-list organization may be filed not later than ninety (90) days before the elections. It
therefore had until February 10, 2004, the ninetieth (90th) day before the elections on May 10, Moreover, the OSG notes that the incorporators and directors of Aklat are invariably known as
2004, within which to file its petition. Hence, its petition, which was filed on November 20, pillars of the book publishing industry or authors. Hence, even as re-organized, Aklat remains
2003, was filed within the allowed period. Section 5 of Resolution No. 6320 12 which requires to be an association of authors, book publishers, and publishing companies, rather than the
the filing of such petitions not later than September 30, 2003, is null and void as it amends organization of indigenous cultural communities, farm and factory workers, fisherfolk and youth
R.A. 7941. it claims to be.

It further maintains that it has complied with the eight-point guidelines set in the Bagong For its part, the Comelec filed a Comment dated March 29, 2004, stating that the period of
Bayani case. Allegedly, Aklat has a total membership of over 4,000 persons who belong to the ninety (90) days prescribed in R.A. 7941 refers to the prohibitive period beyond which petitions
marginalized and underrepresented groups. It has established information and coordination for registration may no longer be filed. Furthermore, the documents submitted by Aklat do not
centers throughout the country for the benefit and in representation of indigenous cultural prove that its members belong to the marginalized and underrepresented sectors of society.
communities, farm and factory workers including fisherfolk and the youth. Aklat also asserts
that it is different from Asosasyon Para sa Kaunlaran ng Industria ng Aklat (A.K.L.A.T.) which Aklat’s contention that Resolution No. 6320 is null and void as it amends and amplifies R.A.
was previously de-registered by the Comelec. Because of all these, Aklat contends that the 7941 deserves scant consideration. R.A. 7941 provides:
Comelec gravely abused its discretion when it denied its petition for re-qualification.
Sec. 5. Registration.—Any organized group of persons may register as a party,
The Office of the Solicitor General (OSG) filed a Comment dated March 26, 2004, stating that organization or coalition for purposes of the party-list system by filing with the
the Comelec did not commit grave abuse of discretion in issuing the COMELEC not later than ninety (90) days before the election a petition verified by its
assailed Resolutions. According to the OSG, Resolution No. 6320 is not in conflict with and is, president or secretary stating its desire to participate in the party-list system as a
in fact, germane to the purpose of R.A. 7941. It was within the scope of the authority granted national, regional or sectoral party or organization or a coalition of such parties or
to the Comelec that it issued Resolution No. 6320 setting the deadline for filing petitions for organizations, attaching thereto its constitution, by-laws, platform or program of
registration under the party-list system on September 30, 2003. In line with the purpose of R.A. government, list of officers, coalition agreement and other relevant information as the
7941 to enable marginalized sectors to actively participate in legislation, the Comelec must be COMELEC may require: Provided, That the sectors shall include labor, peasant,
given sufficient time to evaluate all petitions for registration, at the same time allowing fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women,
oppositions to be filed to the end that only those truly qualified may be accredited under the youth, veterans, overseas workers, and professionals…[Italics supplied.]
party-list system. Besides, Republic Act No. 8436 13 allows the Comelec to change the periods
and dates prescribed by law for certain pre-election acts to ensure their accomplishment. By its wording, R.A. 7941 itself supports the Comelec’s position that the period stated therein
refers to the prohibitive period beyond which petitions for registration should no longer be filed
The OSG further maintains that the petition for re-qualification failed to comply with the nor entertained. Put elsewise, it is simply the minimum countback period which is not subject
provisions of Resolution No. 6320. According to the OSG, the petition was not properly verified to reduction since it is prescribed by law, but it is susceptible of protraction on account of
there being no showing that Mr. Dominador Buhain, the signatory of the verification and administrative necessities and other exigencies perceived by the poll body.
certification of non-forum shopping, was duly authorized by Aklat to verify or cause the
Verily, the Comelec has the power to promulgate the necessary rules and regulations to constituencies considering that it has been in existence for only a month prior to the filing of its
enforce and administer election laws. This power includes the determination, within the petition for re-qualification.
parameters fixed by law, of appropriate periods for the accomplishment of certain pre-election
acts like filing petitions for registration under the party-list system. This is exactly what the It should finally be emphasized that the findings of fact by the Comelec, or any other
Comelec did when it issued its Resolution No. 6320 declaring September 30, 2003, as the administrative agency exercising particular expertise in its field of endeavor, are binding on the
deadline for filing petitions for registration under the party-list system. Considering these, as Supreme Court.17
well as the multifarious pre-election activities that the Comelec is mandated to undertake, the
issuance of its Resolution No. 6320 cannot be considered tainted with grave abuse of In view of the foregoing, the Comelec can, by no means, be held to have committed grave
discretion. abuse of discretion to justify the setting aside of the assailed Resolutions.

Neither is there grave abuse of discretion in the Comelec’s denial of Aklat’s petition on the ACCORDINGLY, the Petition is DISMISSED.
ground that it failed to substantiate its claim that it represents the marginalized and
underrepresented sectors of society. It should be noted that it was Aklat which asserted in its
SO ORDERED.
petition before the poll body that it has re-organized and is now applying for re-qualification
after its de-registration for failure to comply with the guidelines set forth in the Bagong
Bayani case. Thus, the Comelec cannot be faulted for relying on its earlier finding, absent any
evidence in Aklat’s petition to the contrary, that Aklat is not an organization representing the
marginalized and underrepresented sectors, but is actually a business interest or economic
lobby group which seeks the promotion and protection of the book publishing industry.

Significantly, Aklat and A.K.L.A.T. have substantially the same incorporators. In fact, four (4) of
Aklat’s six (6) incorporators14 are also incorporators of A.K.L.A.T. 15 This substantial similarity is
hard to ignore and bolsters the conclusion that the supposed re-organization undertaken by
Aklat is plain window-dressing as it has not really changed its character as a business interest
of persons in the book publishing industry.

The Court observes that Aklat’s articles of incorporation and document entitled The Facts
About Aklat which were attached to its petition for re-qualification contain general averments
that it supposedly represents marginalized groups such as the youth, indigenous communities,
urban poor and farmers/fisherfolk. These general statements do not measure up to the first
guideline set by the Bagong Bayani case for screening party-list participants, i.e., that "the
political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of R.A. 7941. In other words, it must show—
through its constitution, articles of incorporation, bylaws, history, platform of government and
track record—that it represents and seeks to uplift marginalized and underrepresented
sectors. Verily, majority of its membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of interests, it has chosen or is
likely to choose the interest of such sectors."16

In this regard, the Court notes with approval the OSG’s contention that Aklat has no track
record to speak of concerning its representation of marginalized and underrepresented

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